Cosmic Wheel

So much for the original intent of the Founding Fathers.

2011-06-27T01:07:00.001-05:00

I. Introducing the Repeal Amendment

On November 30, 2010--after the mid term election and before the current session of Congress--a Republican in the House by the name of Rob Bishop introduced a proposed Constitutional Amendment that is likely the most ridiculous thing to come out of the collective GOP mindset in the last 10 years at least. This proposed amendment is ridiculous because it would negate core principles in the Constitution and would change government and politics for the worse.

Known as the "Repeal Amendment," here is what it says:

Any provision of law or regulation of the United States may be repealed by the several States, and such repeal shall be effective when the legislatures of two-thirds of the several States approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.

Read that again. Those who fully understand how this proposed amendment violates the structure of our government as established by the Founding Fathers can skip sections II-IV of this post. Anyone who does not have such understanding really should read sections II-IV.

Readers might be wondering why I am writing about this topic now when the Repeal Amendment instead of 6 months ago. I was aware of it back then, but, in my opinion, it was such an absurd proposal that I figured it would fade from the news quickly. And it pretty much did after about a month. And then last week, Bishop declared he was going to reintroduce the Repeal Amendment. That fact plus some of the support Bishop has received from Republicans in Congress make this topic a worthy and timely on for discussion. Among those Republicans are Sen. Orrin Hatch and House Majority Leader Eric Cantor.

The text of the Repeal Amendment was taken from the document Bishop submitted in Congress in November 2010. That text was also printed in most of the news articles I saw regarding the Repeal Amendment from November-December 2010. However, in the news articles I have found in the last week regarding the Repeal Amendment, the text of the proposed amendment is missing. There is a Repeal Amendment website, and as of today, the text they present is the same as what is printed above. Consequently, my analysis is all based on that text.

II. The Constitution and repeal.

This section will address the repeal of legislation and regulations because at first glance it would seem that the Repeal Amendment addresses only those two types of laws. However, as shown in section IV.C below, the Repeal Amendment would impact far more than legislation and regulations.

A. Legislation which becomes law and the repeal thereof

The Constitution can be found plenty of places online. I just happen to prefer the Law Information Institute of the Cornell University Law School.

Let's begin with Article I, Section 1, which says "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." This means that in our national government Congress--and only Congress--can create and pass legislation. Inherent in that power is the ability to repeal legislation through new legislation created and passed by the Congress.

Actually, Congress cannot always pass (and subsequently repeal) legislation on its own. The reasons for that are explained in Article I, Section 7:

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

In other words, the general rule is that legislation which passes both the House and the Senate does not become law unless the Presidents signs it. The primary exception arises when the President "returns and objects to the legislation (otherwise known as a veto), in which case the legislation can become law if both the Senate and House pass the legislation with at least a 2/3 majority. The secondary exception arises when the President does nothing, in which case Congress does not have to vote on the legislation again, but these days that just doesn't happen.

The main point for purposes of this post is that once a piece of legislation becomes law, the President cannot directly do anything to repeal that law. Congress can repeal that law, but the President cannot.

However, the third branch of the government established by the Constitution--the courts--can repeal laws. Article III, Section 2 of the Constitution says "The judicial power shall extend to all cases, in law and equity, arising under this Constitution..." Thus, if a party to a lawsuit claims that a given law violates the Constitution, and if the courts agree, that law will in effect be repealed.

The point is that the Constitution provides the Courts and Congress with the authority and means to repeal any statute (that is, legislation which becomes law).

B. Regulations and the repeal thereof

Regulations are the rules and provisions created and implemented by the various federal agencies, which are part of the Executive branch of the government, established by Article II of the Constitution. Regulations are laws just as legislation from Congress is law.

Article II, Section 1 says that "The executive power shall be vested in a President of the United States of America." The authority to create federal agencies and the President's power to select who is part of those agencies is established in Article II, Section 2:

[The President] shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

As it pertains to the agencies which create regulations, here's how the system works...Those agencies are part of the Executive branch, and the President is in charge of those agencies, but Congress gets to say what agencies are in the Executive branch. A good example is the Homeland Security Act, passed shortly after 9-11. That Act 1) created the Executive branch agency of the Department of Homeland Security , and 2) restructured a significant portion of the federal bureaucracy. Another example is the Department of Energy, which Congress created during the Carter administration.

Another part of the system is the creation of the regulations. Just as Congress determines the structure of the bureaucracy, Congress also determines the framework for regulations through legislation, and agencies must be authorized by Congress to create and enforce rules and regulations. For instance, many legislative acts include what is called an "enabling statute," which says something like "The appropriate federal agency is granted the authority to create and implement any and all regulations necessary to implement the provisions of this act." And then the regulations must be in furtherance of the policies established by Congress. As an example, if an act says that a national energy policy is to be established and that the Department of Energy is to come up with regulations, the DOE cannot create regulations that concern the Social Security system.

That leads into the repeal of regulations. If a regulation is outside the authority granted by Congress or does not deal with the specific legislation to which it is supposed to apply or is otherwise illegal, it can be challenged in court, and the courts can repeal it (pursuant to Article III, Section 2). The agency which created the regulation can repeal it. The President, as head of the Executive branch, could make the agency repeal the regulation. And finally, Congress could pass a law which repeals the regulation.

The point is that the Constitution provides each branch of the federal government with the authority and means to repeal a regulation.

C. Does the Constitution allow the States to repeal federal law?

The answer is clearly "NO." Read Article I in its entirety. There is no mention anywhere of States repealing or ignoring laws established through the legislative process. Likewise, Article II (the basis for the Executive branch being able to create regulations) says nothing about the States being able to repeal regulations. As explained above, the Constitution establishes the authority and means by which all three branches of the federal government can repeal legislation and/or regulations. Thus, it is clear that the Founding Fathers knew how to include language to directly grant such powers. The fact that they deliberately chose to not include any language even implying that the States had any such power should resolve this question.

Just in case some people still need convincing, check out the second clause of Article VI, known as the Supremacy Clause:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

(emphasis added). Clause 3 of Article VI then says

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

(emphasis added).

It is clear that the Constitution does not, in any way, give the States any power to directly repeal laws established by the federal government.

III. Does that really matter?

A. Overview

In one way, the fact that the Constitution does not give the States any power to repeal federal laws is irrelevant. Why? Because the Constitution also provides a process by which the Constitution can be changed via amendment. Any Constitutional provision can be changed as long as the amendment process is properly followed. Consequently it is possible that the current Constitution could be changed by the Repeal Amendment to do something it never has allowed before.

In another way, that is precisely why the current provisions of the Constitution do matter. The Repeal Amendment would completely alter our form of government that has been in place for over 220 years. You know, the form of government that so many Americans cite as evidence that we are the greatest democracy in the history of the world.

I am going to explain how the Repeal Amendment would result in such drastic alteration in the next section, but for now I want to focus on something that I think shows the hypocrisy of Bishop and probably most people who think this Repeal Amendment is a good idea.

I have grown tired of the right wing constantly harping on the "original intent" of the Founding Fathers as justification for so many items on their agenda. I bet that most supporters of the Repeal Amendment just love claiming that that they are all about "original intent." I know Bishop falls in that camp. As he stated on Sept. 17, 2009, “Today, on the 222nd anniversary of the signing of the Constitution, we would do well to remember and recommit ourselves to the original intent of the Constitution – to devolve power and to protect individual liberties.” And when he first introduced the Repeal Amendment, "Bishop, though, told KSL Radio the amendment is not about exerting states rights, but 'an effort to go back to the original intent of the Constitution...'" The Repeal Amendment would allow States to directly repeal any federal law, and as I have shown, there was no original intent in the Constitution that the States could in any way directly repeal any federal law. So just what is this "original intent" Bishop seeks to restore? He provided an explanation on December 16, 2010. His explanation is a mix of naivete, ignorance, and contradiction.

B. Bishop says one thing, then the opposite.

Let's start with a contradiction. Bishop says

Some critics argue that any constitutional amendment shows insufficient reverence for that original text. Some of the same critics argue that the Constitution is a "living document" that should change with the times to read new powers and interpretations into its text. I disagree. The Repeal Amendment follows a process consistent with the Constitution's original intent.

The Constitution established a national government that performed a limited range of functions and rarely intruded into everyday life. Times have changed. Now is the time to limit encroachment of power by the national government and restore the ability of the states to act on behalf of their citizens.

(emphasis added). Bishop first says that the Constitution should not change with the times and that its terms should not be reinterpreted to give them new meanings. And yet his Repeal Amendment would completely change the Constitution in that it would give the States the power to directly appeal federal laws. And he thinks this change is necessary because times have changed!

C. Bishop seeks to restore the "balance" that was in "original intent."

Bishop sees the Constitution as establishing a balance that transcends what some would call changes that he wants to make. According to Bishop, the Repeal Amendment does not change anything. Instead, it seeks to restore what he feels once was and has been lost:

The Founders designed a system of government where states would play a vital role in the governance of the American people. They envisioned a system where states had the capacity to restrain federal power. Unfortunately, that balance between national and state power has eroded.
*******
The sole purpose of the Repeal Amendment is to return our system of government to something closer to the balance of power provided for in the original Constitution.

Let's see how that balance is established in the Constitution. I am not saying this is the way things should be. I am not saying there is not a better way to set up our national government. I am just saying this is what is in the Constitution.

The Constitution establishes a strong federal government whose laws will control over those of the States. Article I, Section 8 contains a long list of matters that are solely within the power of Congress--as in the States have no authority. The States have no authority over those matters because of Article VI, which is quoted in II.C above. Article I, Section 10 contains limitations on States' powers, and even lists some things that States can do only with the consent of Congress (and one of those things will be addressed in IV.C.2 below). Article II vests all the executive power of the federal government in the President and does not grant the States any control over the Executive Branch. Article III, in conjunction with the Supremacy Clause, gives the federal judiciary ultimate authority in all matters involving federal laws and the U.S. Constitution. Although not mentioned in Article III, State courts can make rulings on such matters, but they are constrained by and required to follow the rulings of the U.S. Supreme Court. Article IV specifically addresses the States. Section 1, known as the Full Faith and Credit Clause, requires each State to give "Full faith and credit...to the public acts, records, and judicial proceedings of every other state." Section 2 says "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." In other words, each State has to recognize and enforce within its borders the rights granted citizens in the U.S. Constitution. Section 3 says that only Congress can admit new States into the country, and that "no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress." Section 3 also establishes that "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state." In other words, when the United States has any property interest in a State, that State has no authority over that property. Section 4 says "The United States shall guarantee to every state in this union a republican form of government[.]" That is a good thing, but note that it is the United States, not the States themselves, that has this responsibility.

On the whole, then, it can be said that the original intent of the Founding Fathers was that when it comes to the laws created by the federal government, the States have very little authority. That does not end this "balance" inquiry, however, because the Constitution does allow the States some control over the federal government.

That control is largely in the form of electing members of the federal government. For example, Article I, Section 2 says "The House of Representatives shall be composed of members chosen every second year by the people of the several states[.]" Also, the States get to determine the qualifications to be a voter. Due to the 17th Amendment, Senators are elected the same way, but originally Article I, Section 3 required that "The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof." Still, assuming that the legislature of each state was chosen through popular election, even in its original form, citizens of States had a role in electing Senators. Article II, Section 1 says that the President shall be elected by the votes of each State's "electors," who are to be chosen in the manner selected by each State. This is still done today via the Electoral College, and each State is free to determine not only how the electors are chosen, but also whether and how electors will be pledged to a candidate (usually based on the popular vote). Thus, the States have an indirect control over the laws of the federal government. The President and the members of Congress make most of those laws, and the States and their voters have control over who gets to be the President and the members of Congress.

States also have some power via the 10th Amendment, which says "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." However, for purposes of the Repeal Amendment, the 10th Amendment is irrelevant because the power to repeal federal laws has been delegated to the federal government, and, furthermore, the States are expressly required to follow and enforce those federal laws.

So here's the balance contained in the Constitution as written by the Founding Fathers: Only the federal government can create federal-level laws; only the federal government can directly repeal those laws, and the States' only means of controlling federal laws is through the electoral process. In no way, shape, form, or fashion did the Founding Fathers intend for any balance between the federal government and the States to include the States being allowed to directly repeal federal laws.

Bishop and anyone who supports the Repeal Amendment can argue all they want they the Repeal Amendment is a good and/or necessary provision, but they simply are wrong when they argue that it complies with the original intent of the Founding Fathers.

And they are also wrong in claiming it is a good idea.

IV. The Repeal Amendment would alter our form of government.

A. Overview

For over 220 years, our form of government has prohibited the States from directly repealing any federal law. The Repeal Amendment would give that power to the States. Those facts alone conclusively establish that the Repeal Amendment would fundamentally alter our form of government, and there are more reasons why the Repeal Amendment would in practice likely result in sweeping changes in our system of government.

I will argue that the Repeal Amendment will not result in any positive changes on a real world practical level. I recognize that some people will disagree with me on that, but I also know this: anyone taking that position cannot use "original intent" as any kind of argument. The Repeal Amendment would obliterate the original intent of the Founding Fathers. I have barely begun showing how it does not in the least comply with original intent. I will pick up that effort with discussing the first form of government this country had after the Revolutionary War.

B. The Constitution is great and all, but let's go back to what didn't work before.

By giving the States this direct power of repeal, the Repeal Amendment would significantly weaken the central (federal) government (which should become apparent as this post goes on). Guess what? A similar sort of arrangement was tried, found not to work, and the Constitution was established to correct what had been tried before. I'm talking about the Articles of Confederation. Now, Bishop claims that "this amendment has nothing to do with...returning to the Articles of Confederation." That may be literally true, but there is no question that under the Articles of Confederation the central government was weak. Here is a description of this state of affairs:

Under the Articles each of the states retained their "sovereignty, freedom and independence." Instead of setting up executive and judicial branches of government, there was a committee of delegates composed of representatives from each state. These individuals comprised the Congress, a national legislature called for by the Articles.

The Congress was responsible for conducting foreign affairs, declaring war or peace, maintaining an army and navy and a variety of other lesser functions. But the Articles denied Congress the power to collect taxes, regulate interstate commerce and enforce laws.

And here is another:

While the U.S. Articles of Confederation was a plan of government based upon the principles fought for in the American Revolutionary War, it contained crucial flaws. It had no power of national taxation, no power to control trade, and it provided for a comparatively weak executive. Therefore, it could not enforce legislation. It was a "league of friendship" which was opposed to any type of national authority. The Articles of Confederation's greatest weakness, however, was that it had no direct origin in the people themselves–it knew only state sovereignty. Each state, therefore, had the power to collect its own taxes, issue currency, and provide for its own militia. The government could not govern efficiently because of a general lack of power to compel states to honor national obligations.

Under the Articles of Confederation, the challenges to maintaining a unified nation--one where the States would not be engaged in constant competition with each other and the federal government--were immense. The Constitutional Convention was called in large part to change that situation.

The Constitution gave us a strong central government. Very good arguments can be made that it has become too strong, but the Repeal Amendment is not the way to change that. In any event, a strong central government was the original intent of the Founding Fathers. The Constitution was a big change from the Articles of Confederation. If the Founding Fathers had not intended a strong central government, they would have given us a revised version of the Articles of Confederation, not a significantly different structure. And this original intent--which Bishop claims he wants to maintain--would be disregarded by the Repeal Amendment.

Moreover, as I will eventually explain, the Repeal Amendment would go beyond the problems presented by the Articles of Confederation.

C. The language that is and is not in the Repeal Amendment shows it would fundamentally change our system of government.

1. Overview

In order to justify my previous statement, I need to explain why the wording of the Repeal Amendment makes it a huge, steaming, stinking pile of crap. Seriously, whoever wrote this amendment should be banned from ever again drafting anything of legal consequence.

In our country, the one thing that is determinative in any kind of legal question regarding contracts, statutes, regulations, and Constitutional provisions is the language. If the words used are clear and unambiguous, then the language controls, and nothing can be used to alter the meaning of the language. For example, let's say you, dear reader, agree to sell me a box of widgets for $100, and we sign a contract that says just that. I then refuse to pay you more than $10. We end up in court, and I say to the judge, "Well, your honor, we never intended for me to pay $100. The truth is that we agreed I would pay only $10." The judge will then ask me "Why didn't you put that in the contract, and why did you sign the contract for $100?" No answer I could possibly give would change the inevitable result: the judge will rule that I have to pay you $100, and he might fine me for being a dumbass and wasting the court's time. With statutes, regulations, and Constitutions, it can be a little more complicated. Other laws can be examined that could have an impact on the meaning of a given provision. For instance, certain words or terms used in one specific statute might be defined in another statute. When the two statutes are read together, the language of both will decide the issue.

Bishop claims that the Repeal Amendment is a "a measured and targeted tool for states to reverse particular congressional acts and administrative regulations so long as two-thirds reach a consensus." One problem is that the language of the Repeal Amendment shows that it could easily become a tool of immeasurable impact that could target anything and everything. Notice that there is no express limiting language in the Repeal Amendment. For instance, it does not say that it will be limited to statutes and regulations. Instead, it says that it will apply to "Any provision of law or regulation of the United States..." That's a very target-rich environment.

Given the broad language of the Repeal Amendment and the lack of limiting language, the Repeal Amendment contains no real limitation in terms of scope and reach. That scope includes more than legislation and regulations. Concievably it could include almost every action taken by any branch of the federal government.

2. The Repeal Amendment, as written, applies to the Constitution itself.

Take another look at the Supremacy Clause in Article VI of the Constitution: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land[.]" (emphasis added). The Constitution is a "law of the United States" and thus--under the express terms of the Repeal Amendment--any part or all of the Constitution would be subject to repeal.

Let that sink in for a moment...Take a deep breath. And anyone who might want to say that the Repeal Amendment is not intended to do that or that it would not be used for that, well, you need to take another breath and prepare yourself to be schooled. In other words, if that is what you think, you are mistaken.

Now let's apply the principles discussed in IV.C.1 above to the U.S. Constitution and the Repeal Amendment. The Repeal Amendment says it would apply to "Any provision of law of the United States." The word "any" is clear and self explanatory. Likewise for the word "provision." This is particularly true since the Repeal Amendment does not provide any definition for these words which would alter their plain meaning. The term "law of the United States" does not have an obvious meaning and is not defined in the Repeal Amendment, so could there be another law which could define that term? Why, yes--that would be the Supremacy Clause of Article VI of the Constitution, which, as shown above, declares that the Constitution is a "law of the United States." So, the Repeal Amendment could be used to repeal all or part of the Constitution. If whoever wrote this piece of crap had not wanted it to apply to the Constitution, he could have--and should have--written that in the Repeal Amendment. The bottom line is that regardless of what the drafter intended, the Repeal Amendment could be used to repeal all or part of the Constitution.

Now I know what some of you are thinking...You're thinking that 1) the Supremacy Clause makes a distinction between the Constitution and "the laws of the United States which shall be made in pursuance thereof," and 2) "law or regulation of the United States" as used in the Repeal Amendment does not mean the Constitution. Nice try, but you are wrong. In the Supremacy Clause, there are three items which, while separate, are nonetheless each listed as being "the supreme law of the land." That means that the Constitution and "laws of the United States...made in the pursuance thereof" are part of the same group, as in if one is considered a "law of the United States" for purposes of the Repeal Amendment, then so is the other. There are other arguments I can make, but I really don't see the need.

In any event, the way the Repeal Amendment is written, it applies to the Constitution. And that is a huge change in our system. You see, the Constitution already sets out a procedure for repealing its provisions. It's called the amendment process, and it is set out in Article V:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress[.]

Two things to note: 1) this is a two-step process--proposal of amendments and then ratification by the States, and 2) ratification must come from 3/4 of the States. The Repeal Amendment would basically reduce the process to one step AND would require approval of 2/3, not 3/4, of the States. The Founding Fathers' original intent for repealing Constitutional provisions was clearly to make it a difficult process and require approval by 3/4 of the States. The Repeal Amendment--despite Bishop's bullshit claims to the contrary--obliterates that original intent.

Moreover, there is reason to believe that the Repeal Amendment would be used to repeal provisions of the Constitution. Lest anyone think my efforts would be better spent searching for Bigfoot or investigating the Illuminati, read on...

As one would expect, there are various "conservative" groups in Texas which strongly oppose the current health care reform law. What makes that opposition relevant to this discussion is one thing they are advocating as "reform" for health care. One such group in the Texas Public Policy Foundation, which is openly calling for the Texas Legislature and our glorious governor (that's sarcasm, folks) to enact what is called the "Health Care Compact," which seeks to put control of health care in the States and would allow States to completely disregard any federal laws pertaining to health care. However, the Health Care Compact does call for all State-run health care laws to be funded by the federal government. I have not checked regarding any state other than Texas, but the Health Care Compact site has information on what states across the country are doing. The Texas House is attempting to pass a health care compact right now. A "compact" is "A voluntary arrangement between two or more states that is designed to solve their common problems and that becomes part of the laws of each state." Remember that I said earlier that Article I, Section 10 of the Constitution lists some things that States can do only with the consent of Congress? Well, one of those things is a compact. Under the Constitution, there can be no interstate compacts without the approval of Congress.

So, it doesn't matter how many states want to adopt the Health Care Compact because those compacts will be meaningless unless Congress approves them. In the case of health care, there is no chance that is going to happen unless there is a major change in Congress, and I don't see that kind of change happening. I could be wrong, but I don't think I am. However, if the Repeal Amendment is in place, the provision of the Constitution which requires Congressional approval could be repealed. And what do you know? The Texas Public Policy Foundation is advocating that State legislatures try to get the Repeal Amendment established (see the bottom of p. 1 and top of p. 2). Health care is one of the top "hot button" issues in this country right now, and one way to get rid of "Obamacare" (other than through the courts, and as I have discussed elsewhere, I don't think that is going to happen anytime soon, if at all) would be through compacts, but that can't happen unless the Constitutional provision requiring Congressional approval is eliminated. The Repeal Amendment could do that. Anyone who thinks that could not be done under the Repeal Amendment (as currently worded) is simply wrong, and anyone who thinks that there would not be an attempt to use the Repeal Amendment in this way on this issue is simply naive.

But wait...there's more.

3. The Repeal Amendment would also apply to treaties.

Just as the language of the Supremacy Clause establishes that the Constitution and statutes are "laws of the United States," treaties are also such laws and thus subject to the Repeal Amendment as well. Now there's a good idea.

Under Article II, Section 2 the President is the only person or group authorized to make treaties on behalf of the nation. The only other group involved in the treaty process is the Senate, which must approve each treaty by a 2/3 majority before it becomes effective. Under the Constitution, the States have absolutely no authority of any kind to make or approve treaties. In fact, Article I, Section 10 expressly says "No state shall enter into any treaty[.]" In light of all of this, I would argue the Constitution shows clearly that the original intent of the Founding Fathers was that the States would have absolutely no role or power in the negotiation, making, approving, OR repealing of any treaties, and I challenge anyone to make a plausible argument to the contrary.

Anyone who might think about trying should first consider these statements from the U.S. Supreme Court in U.S. v. Belmont, 301 U.S. 324, 57 S.Ct. 758, 81 L.Ed. 1134 (1937):

Plainly, the external powers of the United States are to be exercised without regard to state laws or policies. The supremacy of a treaty in this respect has been recognized from the beginning. Mr. Madison, in the Virginia Convention, said that, if a treaty does not supersede existing state laws as far as they contravene its operation, the treaty would be ineffective. "To counteract it by the supremacy of the state laws, would bring on the Union the just charge of national perfidy, and involve us in war." 3 Elliot's Debates 515. And see Ware v. Hylton, 3 Dall.199, 236-237. And while this rule in respect of treaties is established by the express language of cl. 2, Art. VI, of the Constitution, the same rule would result in the case of all international compacts and agreements from the very fact that complete power over international affairs is in the national government, and is not and cannot be subject to any curtailment or interference on the part of the several states. Compare United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 316, et seq. In respect of all international negotiations and compacts, and in respect of our foreign relations generally, state lines disappear.

Now does anybody want to argue that the Founding Fathers original intent was to let the States have any power regarding treaties?

To summarize, my argument is 1) treaties are "laws of the United States;" 2) the Repeal Amendment says it applies to any law of the United States; 3) since the Repeal Amendment does not contain any limiting language, it does not say that it does not apply to treaties; and thus 4) the Repeal Amendment could be used to repeal treaties of the United States.

Assuming that I am correct, the Repeal Amendment, by extending its reach to treaties, would once again affect a major change in our governmental system and violate the original intent of the Founding Fathers.

But wait...there's more.

4. The Repeal Amendment might apply to Supreme Court decisions.

Under our system of government, rulings of the Supreme Court are also considered "the law of the land." The Repeal Amendment does not specifically mention Supreme Court rulings, so maybe it thus would not apply to the Supremes, but the absence of an express exclusion means that maybe the Repeal Amendment could be used to overturn Supreme Court decisions.

My use of "overturn" is an indication that perhaps the Repeal Amendment would not apply to court rulings. The term "repeal" is not used in relation to judicial decisions. They are overturned, vacated, and/or reversed. Also the Congress can effectively render a Supreme Court ruling ineffective by repealing legislation or passing new legislation which addresses the ruling. However, that is not referred to as a "repeal," nor is it a direct reversal of a Supreme Court decision. On the other hand, check out this definition of "repeal:" "to annul an existing law, by passage of a repealing statute, or by public vote on a referendum." And then there is this definition: "to rescind or annul by authoritative act[.]" The Repeal Amendment would require an authoritative act by State legislatures, and the legislative resolution called for under the Repeal Amendment would necessarily be granted the same effect as a statute passed by said legislatures. In other words, it seems that "repeal" depends on the nature of the action taken to annul a law, not the nature of the law sought to be annulled, meaning that perhaps the Repeal Amendment would apply to judicial decisions.

By the way, the nature of statutes and resolutions will be discussed in IV.C.8 below...

In any event, I would lay odds that Bishop and his supporters would love to overturn lots of Supreme Court decisions, starting with Roe v. Wade. Bishop is the founder of The Tenth Amendment Task Force, a group dedicated to reducing the power of the federal government and giving power to the States. According to most 10th Amendment advocates, the Supreme Court has long been a major culprit in what they see as the wrongful expansion of federal power. The temptation to use the Repeal Amendment to overturn those troublesome Supreme Court decisions might just be too great for Bishop and supporters of the Repeal Amendment.

But wait...there's still more.

5. What about Executive Orders?

As explained here, an Executive Order is "A presidential policy directive that implements or interprets a federal statute, a constitutional provision, or a treaty," and in some instances it has the same force and effect as law. In other words, some Executive Orders could be considered "laws of the United States" pursuant to the Repeal Amendment. That would mean that the States could directly invalidate an action that is within the exclusive authority of the Executive Branch of the federal government. By the way, that same description is applicable to the Repeal Amendment's application to treaties.

Once again, this would constitute a power that never was contemplated by the Founding Fathers. See, they came up with a way to try to restrain such Presidential power. It's called the system of checks and balances. Under that system, the Congress could enact legislation to counter some Executive Orders, and the Supreme Court could rule such orders to be illegal.

Take a good look at that last paragraph because it foreshadows a discussion of one of the major problems with the Repeal Amendment...

6. The Repeal Amendment has no limitation on how many times it can be used.

In his announcement about reintroducing the Repeal Amendment, Bishop says this:

The tenants [not a misprint, by the way] of the Repeal Amendment are simple: if two-thirds of the states collectively find a federal law or regulation abhorrent or misguided, they should have the power to repeal said law or regulation. The law would then be sent back to Washington for further consideration, at which time Congress may choose not to act again on the matter, or they may vote to override the states’ repeal and pass it in finality.

(emphasis added). I'm confused. Where does the text of the Repeal Amendment say that Congress can override the States' repeal and pass it in finality? Oh wait--I'm not confused because the Repeal Amendment says no such thing. Compare that to what the Constitution says about the President's veto power, namely that Congress can indeed repass the rejected legislation (by a 2/3 majority) and that such action is a finality. In other words, the Constitution expressly says that the President can use the veto power one time only for a given piece of legislation. The Repeal Amendment contains no language even implying a similar set up. And again, any intention by Bishop to include such a limitation is irrelevant because of the absence of such limiting language.

That means that--once again--the Repeal Amendment does not mean what Bishop says it means. Let's say that Congress passes a bill that the President signs, making it a law. 33 States don't like the law, so they invoke the Repeal Amendment. The bill goes back to Congress, and once again Congress passes it and the President signs it. Under the express terms of the Repeal Amendment, the same 33 States could once again repeal the law. And this could go on and on and on because the Repeal Amendment contains no language to stop it.

And that fact foreshadows another discussion of a major problem with the Repeal Amendment...

7. The Repeal Amendment could distort the "will of the people."

Almost all the articles or columns I read about the Repeal Amendment highlighted the fact that it says only that it requires the action of 33 States. As Dana Milbank put it, "The mechanics of the amendment are also a bit odd. It would allow the repeal of any federal law - from civil rights to health care - if two-thirds of the states say so. But that could mean that the 33 smallest states, which have 33 percent of the population, have the power to overrule the 17 largest states, which have 67 percent of the population."

The Founding Fathers faced a similar problem, but their solution was part of the system of checks and balances. At the Constitutional Convention, some wanted a system of representation based only on population. However, others felt that this would marginalize the least populous states. So, the Founding Fathers came up with the "Connecticut Compromise." That gave us our bicameral legislature in which the House of Representatives is based on population and the Senate has two Senators from each State. That set up, plus the fact that legislation must pass both the House and the Senate, allows for the population majority to be heard while the population minority is protected from always being shut out.

What the Repeal Amendment would do is effectively create a unicameral overseer that could thwart the will of the majority of people in this country. I don't care how anyone tries to spin that. There is no way that is what the Founding Fathers intended, and it would constitute a fundamental change in our system of government.

8. There would be no check or balance for the Repeal Amendment.

Given the scope of the Repeal Amendment in terms of how many laws to which it could be applied and no limit on how many times it could be invoked, there is nothing to act as a check or balance for it. Thus, the Repeal Amendment would directly affect the system of checks and balances which is in many ways the hallmark of our form of government. Such effect would necessarily occur because one other entity, the States, would be put in the system, and in some ways that new entity would have more power than than the three branches of the federal government. Why? The Repeal Amendment would give the States authority over all federal actions while no one branch has that authority. Also, under our current system, each branch of the federal government is subject to various checks and balances in the control of the other branches, while under the Repeal Amendment the power held by the States would not face any checks or balances. There is no way that the Founding Fathers intended for any entity or entities to have have such unchecked power.

I need to discuss a specific element of the checks and balances system, namely judicial review. Judicial review is the process by which the courts determine whether specific laws are legal. More specifically, courts will decide whether specific laws are Constitutional. The Repeal Amendment would not be subject to judicial review because it would be part of the Constitution, and the Courts have no authority to declare any part of the Constitution illegal. As a result, the only way to check or limit the Repeal Amendment would be to amend the provision to include limitations or repeal it via the amendment process of Article V. Of course, I am assuming that the amendment process would still be in place.

There is another aspect to this checks and balances analysis. Recall that under the Repeal Amendment 2/3 of the State legislatures must pass a resolution calling for the repeal of a given federal law. So, just what is a resolution? A full explanation can be found at The Free Dictionary, and I will quote excepts from that page. For starters, a resolution is "The official expression of the opinion or will of a legislative body." It is no more and no less. For purposes of this discussion, a fundamental point is that "Resolutions are not laws; they differ fundamentally in their purpose." As stated in the first quote, resolutions are basically opinions, and

When resolutions are mere expressions of opinion, they differ fundamentally from laws. In essence, laws are intended to permanently direct and control matters applying to persons or issues in general; moreover, they are enforceable. By contrast, resolutions expressing the views of lawmakers are limited to a specific issue or event. They are neither intended to be permanent nor to be enforceable. Nor do they carry the weight of court opinions. In a certain respect, they resemble the opinions expressed by a newspaper on its editorial page, but they are nonetheless indicative of the ideas and values of elected representatives and, as such, commonly mirror the outlook of voters.

(emphasis added). So, the Repeal Amendment would allow something which has no legal effect to get rid of actual laws. In other words, something which did not have to go through the entire process of becoming a law and thus enforceable can be used to negate something which did have to go through a rigorous process in order to be enforceable, and I will soon show what that has to do with checks and balances.

The general rule is that resolutions do not have the effect of law. There is an exception.

When both houses adopt the same motion, it is called a joint resolution. Besides carrying the greater force of unanimity, the joint resolution also has a specific legal value in state and federal government. When such a resolution has been approved by the president or a chief executive—or passed with the president's approval—it has the effect of law. In some states a joint resolution is treated as a bill. It can become a law if it is properly passed and signed by the chief executive officer.

Here in America (at both the federal and State level) legislative actions become law if they are bills which pass the entire legislature and are either signed by the chief executive (President of governor) or passed again over a veto by the chief executive. That is where the American system of checks and balances comes into play. However, under the Repeal Amendment, none of that applies. A State legislature can pass a resolution, and without approval by the chief executive, that resolution in effect becomes something that can overturn a law that has gone through the normal legislative process. The State legislature gets to act completely on its own with nothing to check or balance that power. Just how American is that?

There is a greater than zero chance that someone will think that the Repeal Amendment simply mirrors a way that the Constitution can be amended. Indeed, Article V says that one of the ways proposed amendments can be created is "on the application of the legislatures of two thirds of the several states"--as in the legislatures acting alone without approval of the chief executive. However, such application is but one step in the process. It is not the only or final step, whereas under the Repeal Amendment, such action is the only step needed to repeal virtually any federal law. And that one step is not subject to any checks or balances at the State or federal level.

D. Summary

The Repeal Amendment would fundamentally change our system of government by giving the States direct power over federal laws--power that the States have never had under the Constitution, and power that the Founding Fathers never intended the States to have. Moreover, that power could extend to almost every action taken by any and all branches of the federal government. Indeed, the Repeal Amendment--as written--could be used to repeal all or part of the Constitution itself. The Repeal Amendment would not be subject to any of the checks and balances that have become a hallmark of American government. Not only that, but under the Repeal Amendment, it would be possible for 33% of the American population to dictate policy to the other 67%. Our Constitution and our form of democracy have never envisioned such a result, and yet that could happen under the Repeal Amendment.

V. The Repeal Amendment would produce bad results.

A. Overview

And now we get down to the real heart of the matter. I could maybe live with the fact that the Repeal Amendment would toss out most of the governmental system that has been in place for over 220 years if it is likely to result in something positive, but, as I said, the Repeal Amendment is a huge, steaming, stinking pile of crap, and that, my fellow Americans, will not produce good results.

If the Repeal Amendment actually becomes an amendment, I predict there will be gridlock and political bovine fecal matter the likes of which we have never seen. Take all the political strife and rancor we have now and multiply it by at least a factor of 10.

B. Gridlock

As for the gridlock, I'm sure some people would say it could not get any worse. One perpetual complaint (which has a lot of validity) is that there is too much red tape in our government. Now into that structure, throw in one more element--the States under the Repeal Amendment. How is that going to help the situation? Here's a clue: it won't.

Here are some gridlock scenarios:

As I described in IV.C.6 above, Congress could pass a law, the States repeal it, the Congress repasses the law, the States repeal it, and so on and so on. Nothing will get done by Congress. No progress will be made. That's gridlock.
Congress passes a law, the States repeal it, Congress tries to pass a new law that addresses the States' objections, but can't do it because of the regular gridlock that typically grips Congress.
Congress passes a law, the States repeal it, Congress passes a law which does address the States' concerns, but the new law--unlike the previous one--is objectionable to the President, so he vetoes it, and the Congress cannot override the veto. So we have a stalemate, otherwise known as gridlock.

And something close to these scenarios could play out in regard to regulations. A given federal agency goes through the entire required process of writing, proposing, publicly posting, investigating, allowing and receiving public comment, holding hearings, etc., enacts a given regulation, and then the States repeal it. The agency then goes through the process again, and the States repeal the regulation again, etc.

There are other ways in which the Repeal Amendment would likely cause massive gridlock, but I will describe them as I discuss some of the other adverse results sure to follow the Repeal Amendment.

C. Things will be worse than under the Articles of Confederation.

Recall that in III.C and IV.B I explained that

the "balance" in the Constitution is that there would be a strong central government in which States would have little to no direct control over federal laws;
under the Constitution the States are obligated to follow and enforce federal laws;
the Constitution was intentionally designed to correct the flaws in the Articles of Confederation, chiefly the lack of a strong central government
under the Articles of Confederation, the States retained full sovereignty, meaning that they were under no obligation to obey laws of the national government and the national government had no way to enforce any of its laws.

However, under the Articles of Confederation, the States had no power to directly repeal national laws, and that is why the Repeal Amendment would be worse in operation than the Articles of Confederation.

Before explaining myself, I need to explain the term "de facto." This is Latin for "in fact." In the legal world, this term is used to describe something that might not on its face or technically be a given thing but in operation--in fact--it is that given thing. For instance, a law might not be discriminatory in appearance, but the way the law actually works and the effects it produces could make the law "de facto" discriminatory.

I have already shown that the Repeal Amendment on its face would give the States powers they have never had before and violate the original intent of the Founding Fathers. What is not apparent on the surface is the degree to which the Repeal Amendment would weaken the federal government and cause huge problems in our nation. What I will show is that the Repeal Amendment is a de facto tool to severely weaken the federal government.

Basically, the Repeal Amendment could turn our whole system of government around and put the States in control of national law. This is not readily apparent because the Repeal Amendment on its face only gives the power to repeal federal law. It does not give the States power to create and enforce laws on a national level. However, its operation, as a practical matter, could give the States those powers.

Think I'm crazy? Granted, my aluminum foil hat might not be fitting properly, but that doesn't mean I am wrong about this.

Review my gridlock scenarios and then consider the following. The States, through their unchecked and unlimited power under the Repeal Amendment, could keep invalidating any law passed by Congress. The States could keep doing this until Congress enacted a law that met with those States' approval. If that happened, the States in fact would have forced Congress to do what they wanted. From then on, the States could do that with any federal law to which the Repeal Amendment applies (which I have shown is damn near all of them). Eventually Congress could end up seeking the approval of at least 33 States before drafting and or voting on any legislation, and if that happened, then once again the Repeal Amendment would be a de facto tool to get the federal government to take orders from the States.

Now, I know what some of you are thinking. You're thinking that there is no way I can prove that this will happen. That is true, but neither can anyone prove or guarantee that it won't happen--and that is the point. Because the Repeal Amendment has no limitations of the power it would grant, everything I describe in the previous paragraph could happen.

Moreover, I maintain all of that is more likely than not to happen. If the Repeal Amendment became law, it would do so by riding a wave of anti-Washington, pro-States sentiment, and I would bet that a lot of people would want to invoke the Repeal Amendment as soon as possible. I kid you not when I say that I think it would be somewhat like the Roman games as depicted in the movie "Gladiator"--"the people" will want Washington blood, the Repeal Amendment will be the most direct way to get it, and if they don't get it, things are going to get out of hand. Is that a little too harsh? Well, try this on for size...Making the Repeal Amendment law and then not using it will be similar to giving an 18-year old a brand new Porsche and telling him he can only drive around the block at 20 mph--but no one is going to make sure he only does that. It's just unreasonable to think he is going to comply.

Now back to why the Repeal Amendment will weaken the national government more than the Articles of Confederation. Under the Articles, the States did not have to follow national directives, but the States did not have the power to repeal national laws. Under the Repeal Amendment, the States would have that power, which means the States would have the ability to directly and indirectly dictate national law and policy (as described three paragraphs above). That will weaken the national government far more than the Articles of Confederation could have. Another way to view this is that under the Articles of Confederation, the national government was weak by design and at its creation. The Repeal Amendment would take the strong national government designed and established by the Constitution and erode it.

And this is just the start of what could happen under the Repeal Amendment.

D. Think "Washington" is bad now? Just wait until another layer is added.

Here are common complaints about "Washington:" too much red tape and inefficiency, lobbyists have too much influence, there is too much corruption, and members of Congress are too concerned about their own personal interests.

I have news for everyone...the Repeal Amendment will not solve these problems and will only make them worse. Think about it. "Washington" will still exist, even if the federal government is weakened. Since the Repeal Amendment would still leave the direct legislative and executive power in the federal government, there still have to be lawmakers in Washington, and that means there will still be lobbyists and corruptive influences there. However, there would also be new people who could have both a direct and indirect power over national law and policy--the legislators in each State. Overnight, lobbyists, corporate interests, fundraisers, and general douchebags would not limit themselves to Washington. Suddenly there would be 50 more places for these people to infest. Yes, I know that they are already there now, but the Repeal Amendment would give them another reason and another objective. Right now, State legislators have no power over what happens in "Washington," but under the Repeal Amendment they would. The Repeal Amendment would thus give lobbyists and other corrupting influences more opportunities to do that voodoo that they do so well--and more ways to mess up our national system, by subjecting it to more corruption and inefficiency. The Repeal Amendment will not streamline the federal lawmaking process. It will instead have the potential to bog it down and dirty it up even more.

As I said in V.B above, adding another element to the national governing structure would increase gridlock, and now I will say that adding that additional element would make things more "Washington"-like. Think about it. If "Washington" is already too complicated, layered, and inefficient, does it make sense to add another layer? How is that going to solve anything? And the reality is that the Repeal Amendment would add not just one element or layer, but more like 50, as in every single state. Every single State would have the ability to affect national policy. That means that not only would the country have to deal with 545 members of Congress but every single legislator in every single State. That would certainly add tremendously to the probability that "Washington" problems would spread and increase tremendously. That would, among other things, add to the inefficiency of government.

And by the way, an increase in inefficiency could lead to an increase in gridlock.

E. State governments will be less about their own States.

Furthermore, the Repeal Amendment would adversely affect the lawmaking process in the States. Once States--through their legislatures--have power under the Repeal Amendment, my guess is that the States' governments will increasingly be concerned with national laws and policies and less focused on what is going on at home.

Think about how much State campaigns and politics have been mostly about national issues. If you want to claim otherwise, you simply have not been paying attention. So many campaigns talk about what's wrong with "Washington," and candidates go to great efforts to convince voters that they are not like "Washington insiders." Candidates either try to hitch themselves to popular things about their party's performance in the federal government or they try to distance themselves from items in said performance that are not popular with their electorate. State elections are often analyzed as being some sort of referendum on either the Democratic or Republican party nationwide. States are now "Red" and "Blue," as in Republican or Democratic, and that has everything to do with national, not State, politics. In other words, politics at every level has become not just hyper partisan but has also become viewed as being tied to national politics.

And it is in this climate that the Repeal Amendment would take effect. Candidates for State office would no doubt promise voters that they would "fix Washington" because now they would have the power to do just that. This climate in combination with what I set out in V.D above would cause State governments to start focusing on and spending more time and effort on national matters, which would necessarily mean their time spent on State matters would decrease.

The Repeal Amendment would also require States to seek allies among and deals with other States. Those efforts will take up time and energy that could otherwise be spent on matters of State government that would actually affect individual States.

This increased emphasis on national policy, decreased attention to State matters, and need to make deals could also result in massive gridlock at the State level. For instance, some legislators in an individual State might not act on State-related legislation until they can get deals from other legislators on national Repeal Amendment issues, and vice versa. Other legislators in that State could refuse to act on all sorts of matters until some sort of deal was worked out with other States regarding Repeal Amendment issues. And while all of this would be going on, there would be the real potential of nothing much getting done in State legislatures. And there would be more wheeling and dealing within a single State's legislature. Why? Because there would be an increase in the number of matters subject to deal-making as a result of the effect of the Repeal Amendment, and that could once again lead to more gridlock.

F. Summary

I have not discussed all the possible effects of the Repeal Amendment. However, I will say that I feel it s probable that everything I have discussed will happen. To those who feel differently I say that the Repeal Amendment is at best a ticking time bomb of unintended consequences. This is particularly true because the Repeal Amendment contains no limitation as to its scope and reach and frequency with which it can be used. Because of those facts, I believe no one can make a credible claim that what I have described will not happen at all. It is also possible that somehow everyone would realize the need for control and discretion regarding the Repeal Amendment, but that would depend on a mass outbreak of common sense and civility, and sadly, I don't see that happening.

Unless I am wrong in my previous pessimistic pronouncement, the Repeal Amendment will not solve any problems and will in fact create more problems by eroding the national government structure as established by the Constitution, increasing gridlock at the federal and State levels, and turning the whole country into "Washington." The Repeal Amendment as it exists now is simply an extraordinarily bad idea.

Upcoming post and some random observations

2011-06-08T03:33:00.000-05:00

For some time now I have been working on a lengthy (of course) post on something called the Repeal Amendment. It is one of the dumbest ideas I have seen in a long time. The Repeal Amendment would allow 33 States to repeal or otherwise get rid of just about any federal law (which includes so much more than statutes passed by Congress). As I will explain in the post, the Repeal Amendment obliterates the original intent of the Founding Fathers, would create chaos, and could start the dismantling of our form of government which has been in place for over 220 years.

Now for some random thoughts (which could be the fodder for future posts):

Anthony Weiner is a complete idiot. His stupidity could cause serious damage that goes way beyond his career.
Sarah Palin really needs to shut the hell up and go away.
Same goes for Michele Bachmann.
Wisconsin Republicans are pathetic.
This is one of my shortest posts ever. Don't get used to it.

My favorite whipping boy declares for 2012.

2011-05-14T00:25:00.001-05:00

Over the years, there have been more than a few people I have delighted in treating as whipping boys (damn near anyone in the George W. Bush administration) and some whipping girls (Hillary Clinton chief among them), but at the top of the list is Newt Gingrinch. Among all those people, he is, in my opinion, the biggest amoral, reprehensible, self-centered, hypocritical asshole.

Seriously.

And now he has decided to once again run for President.

I can't stand Donald Trump. I didn't think it possible, but his antics the last few months have made him an even bigger buffoon than he was before. And yet I would rather have him as President than Newt.

Seriously.

In December 2006, Newt was contemplating running for President in 2008, and that prompted me to write a 7-part series entitled "Newt Gingrich--what a swell guy!" Here are the links to that series:

Newt Gingrich--what a swell guy! (Part 1: book deals and hypocrisy) (December 4, 2006)
Newt Gingrich--what a swell guy! (Part 2: money and the Contract with America) (December 4, 2006)
Newt Gingrich--what a swell guy! (Part 3: the ethics charges) (December 11, 2006)
Newt Gingrich--what a swell guy! (Part 4: the family man) (December 12, 2006)
Newt Gingrich--what a swell guy! (Part 5--ego and personality) (December 18, 2006)
Newt Gingrich--what a swell guy! (Part 6--more proof that hypocrisy is his SOP) (December 23, 2006)
Newt Gingrich--what a swell guy! (Part 7--the new guardian of free speech) (December 27, 2006)

I followed that up in March 2007 with Newt Gingrich admits past infidelity, but swears he's no hypocrite.

And just when I thought I was done with Newt for a while, last summer he started sending out signals that he was going to run in 2012, so I did a review and update on his abject lack of character.

And while I was writing that post, Newt had to go and spew all sorts of inaccurate and inflammatory bullshit about the so called "Ground Zero Mosque." I responded with three posts:

Here's what I wrote in the opening of the first of those posts: "His statements about the Muslim community center and mosque are complete bullshit and show what a bombastic, self-serving douchebag he is." And then I proceeded to back that up in a big way.

And now Newt is running for President again.

Josh Marshall had some interesting initial observations over at Talking Points Memo:

Jon Alter and David Corn are on Hardball right now working their way through Newt Gingrich's history of ferociously crazy and borderline eliminationist rhetoric going back 30 years. And it's almost comical: because watching, you can sort of see that they are defeated by the sheer volume of completely clownish and wildly intemperate statements. Where do you possibly start?

In recent history we know Obama as crazed machete-waving Luo tribesman, and the secular socialist, anti-colonialist version, the constant comparisons of Democrats to Nazis and Gulag operators.

But for me it all goes back to that epic moment on the eve of the 1994 GOP congressional blowout when Gingrich took that horrible tragic example of the Susan Smith murders -- the young woman who murdered her little kids down in South Carolina -- and used it as an example of the results of Democratic social safety net programs and the need to vote Republican to keep crazy young mothers from murdering their children and blaming it on black men. It was somewhere around then when he said that Democrats were "traitors" and the "enemy of normal Americans."

At some level this is what I almost admire about Gingrich -- in the face of the universe, in almost every waking moment, he announces that he is balls-up to shame. It just ain't his bag. 'Admiring' isn't the right word. It's more like the way that even though I don't like slasher films I can sort of get that there's a level of art or gory sublimity to it. And that's Gingrich, not a politician or even a mere huckster, but something much more than that, a right-wing performance artist who for a critical decade or so overlapped with the real world of electoral politics and ascended to the highest echelons of power. The almost appealing slasher barging in on the carefree picnic day of our political life.

In many ways, Josh summed up Gingrich, but I urge everyone to check out the links Josh provided for many more details about what Newt has been doing lately. This guy will never change.

During the 2008 campaign, I was on a mission to show people why Hillary Clinton should not be President. I will do the same regarding Newt for 2012.

Bin Laden is dead, and somehow it will be declared a bad thing by the Republicans.

2011-05-01T22:37:00.000-05:00

Obama just announced that Osama bin Laden is dead. I'm sure many Republicans and the idiots at Faux News will claim that the only reason Obama killed Osama is that bin Laden had the real Obama birth certificate showing that Obama was born in Indoghanistanipak or some such.

"Curveball" finally confesses what we already knew.

2011-02-24T13:13:00.000-06:00

As reported by MSNBC last week, "An Iraqi defector who went by the codename 'Curveball' has publicly admitted for the first time that he made up stories about mobile bioweapons trucks and secret factories to try to bring down Saddam Hussein’s regime."

Then again, this really isn't big news, because it has been known for years that this man outright lied about the bioweapons. As I noted on April 13, 2006, Curveball (real name Rafid Ahmed Alwan al-Janabi) had been provided by the Iraqi National Congress, the group led by Ahmed Chalabi. This is important because, as I noted on February 22, 2005, Chalabi admitted that he and his group had lied about WMDs and Saddam having ties to Al Qeada. By the time of my April 13, 2006, post, it had already been established that Curveball had lied about the bioweapons.

My anger now, as then, is not directed at Curveball. Rather my anger is on the assholes in the Bush administration that used Curveball's lies to build the case for war. The April 13, 2006, post and a post from February 13, 2007, discuss how Curveball's "info" and other so-called "intelligence" was used by the Bush administration in spinning its false reasons for going to war. As I noted in that later post, Curveball--and many of the Iraqi defector sources--was considered unreliable by the U.S. intelligence community, but that didn't matter to Bush, Wolfowitless, Rumskull, and the others. Also seriously at fault are British and German intelligence officials, but I'll get to that part of the story later.

By the way, in 2007, Pulitzer Prize winning journalist Bob Drogin published a book enititled Curveball--Spies, Lies, and the Con Man Who Caused a War. I bought it about a week before the story of Curveball's confession broke. I have yet to read it, but will get to it soon.

The MSNBC article gave some details about what was known about Curveball's lack of credibility before the war, including the fact that Tyler Drumheller, then the head of the CIA in Europe, warned Bush officials before the war that Curveball was likely lying. The rest of what is in the MSNBC article is a shorter version of what was in a February 15 article in the Guardian. That article was based in part on interviews with Curveball, and it painted an ugly picture.

In a series of meetings with the Guardian in Germany where he has been granted asylum, he said he had told a German official, who he identified as Dr Paul, about mobile bioweapons trucks throughout 2000. He said the BND (German Secret Service) had identified him as a Baghdad-trained chemical engineer and approached him shortly after 13 March of that year, looking for inside information about Saddam's Iraq.
*******
Janabi claimed he was first exposed as a liar as early as mid-2000, when the BND travelled to a Gulf city, believed to be Dubai, to speak with his former boss at the Military Industries Commission in Iraq, Dr Bassil Latif.

The Guardian has learned separately that British intelligence officials were at that meeting, investigating a claim made by Janabi that Latif's son, who was studying in Britain, was procuring weapons for Saddam.

That claim was proven false, and Latif strongly denied Janabi's claim of mobile bioweapons trucks and another allegation that 12 people had died during an accident at a secret bioweapons facility in south-east Baghdad.

The German officials returned to confront him with Latif's version. "He says, 'There are no trucks,' and I say, 'OK, when [Latif says] there no trucks then [there are none],'" Janabi recalled.

He said the BND did not contact him again until the end of May 2002. But he said it soon became clear that he was still being taken seriously.

He claimed the officials gave him an incentive to speak by implying that his then pregnant Moroccan-born wife may not be able to travel from Spain to join him in Germany if he did not co-operate with them. "He says, you work with us or your wife and child go to Morocco."

The meetings continued throughout 2002 and it became apparent to Janabi that a case for war was being constructed. He said he was not asked again about the bioweapons trucks until a month before Powell's (pre-war United Nations) speech.

After the speech, Janabi said he called his handler at the BND and accused the secret service of breaking an agreement that they would not share anything he had told them with another country. He said he was told not to speak and placed in confinement for around 90 days.

(emphasis added). Unbelievable. The man was caught lying by the British and the Germans, admitted that he was lying, and yet the Brits and especially the Germans treated his "information" as truth. And even though the Bush administration had been presented with warnings that Curveball was lying, they did nothing about that and continued for several years to claim that he was telling the truth.

Second post on the courts and the indvidual mandate

2011-01-24T23:01:00.001-06:00

I. Overview

This post will examine the individual mandate in light of some of the law applicable to the question of its constitutionality. As I previously stated, "Anyone who wants to claim that this issue is simple and straightforward is, in my opinion, wrong," and I think this post will prove that.

Then again, this post will not be as complicated as it could be. I will examine the individual mandate under a Commerce Clause analysis only. That was the only issue decided by Judge Hudson in the Virginia case. He did not rule on--and I will not discuss in this post--the 10th Amendment issue. Instead, this post will analyze whether the individual mandate is constitutional under the Commerce Clause and Necessary and Proper Clause.

As will be shown, the Commerce Clause and Necessary and Proper Clause are often used in tandem in Commerce Clause cases. Often when a case is overall a Commerce Clause case, the Necessary and Proper Clause becomes the determinative factor. I believe that is true in the case of the individual mandate. Although much has been said about whether the individual mandate is proper under the Commerce Clause of the Constitution, I believe that whether the individual mandate is constitutional depends on the Necessary and Proper Clause. In my opinion, the individual mandate, standing alone, does not comply with the Commerce Clause. However, I believe it is constitutional under the Necessary and Proper Clause.

Here 's a preview...I think that under current law, the individual mandate is constitutional. In addition to explaining my opinion, I will also present arguments based on current law that could be a basis for striking down the individual mandate. Sections II and III set out the legal basics. Sections IV-IX discuss the how current law favors the individual mandate. As will become apparent in that discussion, I think that how the argument in favor of the individual mandate is structured is very important. The focus needs to be on regulating health care, not health insurance. Sections V.C and D begin the explanation for that opinion and the discussion of how the individual mandate could be declared unconstitutional. That discussion continues in Section XI. Before that, in Section X, I will explain why I think Judge Hudson's ruling in the Virginia case is wrong. And finally, I will present a conclusion in Section XII.

Although I think that under current law the individual mandate is legal, I still am not sure how the Supreme Court will rule. The Supremes are free to make changes in some of the law, create some law, and rule the individual mandate unconstitutional.

Like I said, this is a complicated issue. Now for the proof...

II. There is a vast amount of precedent to evaluate.

The Commerce Clause and the Necessary and Proper Clause have been interpreted and evaluated by our courts practically since the birth of our Constitution. That means there is a vast amount of precedent that is relevant to any question involving both of them.

For a primer on the Commerce Clause and the judicial precedent related to it, this Wikipedia article is good. If you read that and get a case of tired head, just realize that that article qualifies as the proverbial tip of the iceberg. You might instead want to start with this column by Stuart Taylor. It concisely discusses some of the factors at play in this litigation about the individual mandate.

So, generally speaking, there is a vast amount of precedent regarding the Commerce Clause and the Necessary and Proper Clause. And there is a reason why much of it will necessarily have to be considered in this case. Judge George Steeh wrote the following in his order upholding the constitutionality of the individual mandate:

The Court has never needed to address the activity/inactivity distinction advanced by plaintiffs because in every Commerce Clause case presented thus far, there has been some sort of activity. In this regard, the Health Care Reform Act arguably presents an issue of first impression.

"Issue of first impression" is an issue that has never been presented to and decided by the Courts, especially the Supreme Court. There will be cases that have facts the same or similar to earlier rulings, or precedent. In those cases, precedent will be applied. However, sometimes issues arise in a case for which there is no precedent. In those cases of "first impression," Courts have to find reasoning from other precedent on which to base a ruling. This necessarily requires a wider review of precedent and more work. And that is pretty much what we have regarding the constitutionality of the individual mandate.

If you have read the Wikipedia article and the Stuart Taylor column, you should have an idea of just how complicated and challenging this task will be.

Just in case you might still doubt that a great deal of precedent will have to be reviewed, consider the basic argument against the individual mandate: the Commerce Clause permits regulation of economic activity, and since the individual mandate seeks to penalize people for inactivity, it is not within the scope of the Commerce Clause. Another way to state this argument is to say that the individual mandate is not within the scope of the Commerce Clause because it seeks to force people to engage in an activity. Those arguments are straightforward and make a lot of common sense. However, there is at least one potential problem. Here is the actual language of the Commerce Clause:

The Congress shall have power...To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

The Commerce Clause does not include the words "economic" or "activity." For those who like to take a literalist or strict constructionist view of the Constitution, this is a problem. One could argue that it only makes plain sense that "commerce" includes "economic activity"--and I would agree--but that does not change the fact that that is NOT what the Constitution expressly says. I submit that it necessarily follows that it was judicial decisions that defined "commerce" to include "economic activity." That means there is a need for those relying on this "economic activity" argument to examine and interpret lots of precedent.

And then there's the Necessary and Proper Clause, which says that

The Congress shall have power...To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

I will discuss this Clause in more detail in III.B and IV-IX below, but for now I will note that this provision basically addresses the means by which Congress manifests the powers of the federal government as granted by the Constitution. In other words, the Necessary and Proper Clause deals primarily with the means, not the ends. This is an important distinction. As for the amount of precedent dealing with the Necessary and Proper Clause, that precedent goes back to the landmark case of McCulloch v. Maryland, which was decided in 1817. Also, as stated in this Wikipedia article, "Indeed, the influence of the Necessary and Proper Clause and its broader interpretation under McCulloch vs. Maryland in American jurisprudence can be seen in cases generally thought to simply involve the Commerce Clause." So, a great deal of the precedent involving the Commerce Clause also involves the Necessary and Proper Clause. I will discuss one such case in detail in IV-IX below.

III. The precedent is not exactly clear and narrow.

As mentioned, the Commerce Clause and the Necessary and Proper Clause--and the precedent related to them--have been used to greatly expand federal power over the years. And now the Virginia case and others are attempting to place a limit on those powers. The problem in that regard is there there are so many cases granting expansion that there is a lot of precedent which could be used to persuasively argue that the individual mandate is constitutional.

A. Commerce Clause

Part of that precedent includes decisions that something comes within the scope of the Commerce Clause if it has an "effect" on interstate commerce. Here's how the Supremes stated it in the 2005 case of Gonzales v. Raich, 545 U.S. 1 (2005):

...Congress has the power to regulate activities that substantially affect interstate commerce. Ibid.; NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937)...Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce. See, e.g., Perez, 402 U.S., at 151; Wickard v. Filburn, 317 U.S. 111, 128—129 (1942). As we stated in Wickard, “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” Id., at 125. We have never required Congress to legislate with scientific exactitude. When Congress decides that the “ ‘total incidence’ ” of a practice poses a threat to a national market, it may regulate the entire class. See Perez, 402 U.S., at 154—155 (quoting Westfall v. United States, 274 U.S. 256, 259 (1927)[.]

545 U.S. at 16-17. I'm not saying that's good or bad, right or wrong. I'm just saying that is the law.

On the other hand, maybe there is a potential flaw in a claim that the individual mandate is authorized by the Commerce Clause, which is used to regulate interstate commerce. Under current law, a person cannot purchase a health insurance policy in a state other than the one in which he lives. That would seem to indicate that purchasing a health insurance policy is strictly an intrastate matter. That means there is another common sense argument, but there's that "effect" business to deal with, and there is other law that--for now--says that the "business of insurance" is interstate commerce. Much more on that in XI.C below...

And then there's the "rational basis" analysis. As the Court said in Gonzales v. Raich,

In assessing the scope of Congress' authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding.

545 U.S. at 22. Due to these concepts, the Supreme Court over the years has developed a level of deference to Congress when it comes to evaluating Commerce Clause cases. These excerpts from the Wikipedia article describes this deference:

The evolving level of scrutiny applied by Federal courts to Commerce Clause cases should be considered in the context of rational basis review. The idea behind rational basis review is that the judiciary must show deference to the elected representatives of the people. A respect for the democratic process requires that the Courts uphold legislation if there are rational facts and reasons that could support Congressional judgment, even if the Justices would come to different conclusions. Throughout the 20th century, in a variety of contexts, courts sought to avoid second guessing the legislative branch, and Commerce Clause jurisprudence can be seen as a part of this trend. Lawrence Tribe states:

Since 1937, in applying the factual test of Jones & Laughlin to hold a broad range of activities sufficiently related to interstate commerce, the Supreme Court has exercised little independent judgment, choosing instead to defer to the expressed or implied findings of Congress to the effect that regulated activities have the requisite "economic effect". Such findings have been upheld whenever they could be said to rest upon some rational basis.
*******
Since its decision in Gibbons, the Supreme Court has recognized that judicial limitations on Congressional exercise of its Commerce Clause powers represent an invasion of the democratic process. Of course, in some sense, by its very nature, the Constitution represents a constraint on the democratic process, because the Constitution represents a set of rules which may not be overturned through ordinary democratic means. Nevertheless, the Court regularly points out that the primary limitation on unwise exercise of Congressional Commerce Clause must be found at the ballot box.

What all this means is that I think finding precedent to support a claim that the individual mandate is constitutional is going to be relatively easy. And even though the basic argument against the individual mandate makes common sense, the task for those on that side of the fence is explaining why that precedent should not apply.

Again, the most straightforward, common sense way to do that is to say that the individual mandate seeks to regulate inactivity as opposed to activity. However, since this is largely a question of first impression, there is no precedent regarding the type of inactivity present in this question and the Commerce Clause. There is precedent that, while not completely directly applicable, can be used to argue that the Commerce Clause can be used to regulate the "inactivity" of not buying health insurance, as discussed in V below.

B. Necessary and Proper Clause

As I said before, the Necessary and Proper Clause has been used many times to support expansions of federal power. That means there is a lot of precedent that could support the individual mandate.

Not only that, but I think whether the individual mandate is constitutional turns on the Necessary and Proper Clause, so the discussion here of that clause is going to be lengthier than that for the Commerce Clause.

1. The lasting conflict in interpretation

As noted in the Wikipedia article, the Necessary and Proper Clause has been controversial from the very beginning, as in the debates prior to the ratification of the Constitution. James Madison argued that without the Necessary and Proper Clause, the Constitution would be a "dead letter," while Patrick Henry countered that it would lead to limitless federal power and would be a threat to individual liberty. To some extent I think Madison and Henry are both right, and therein lies the dilemma for Courts in making rulings involving the Necessary and Proper Clause.

On the one hand, the meaning of the Clause can be described by Madison's words in the Federalist Papers: "No axiom is more clearly established in law or in reason than wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power for doing it is included." (emphasis added). On the other hand, a case for limiting federal power under the Clause is found in the words of Chief Justice Marshall in McCulloch v. Maryland.

We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.

(emphasis added). The emphasized portion is basically the position taken by Judge Hudson in the Virginia case. (Hudson opinion, pp. 19, 24). However, as I will discuss in X.B and C below, the Supreme Court's 2005 decision in Gonzales v. Raich does not support Judge Hudson's ruling.

2. Chief Justice Marshall's admonitions

At this point, however, a further discussion is warranted. For me, the most important phrase from Chief Justice Marshall is "not prohibited." The meaning of that phrase could be crucial in evaluating the individual mandate pursuant to the Necessary and Proper Clause. As Justice Breyer wrote for the majority in U.S. v. Comstock, 130 S. Ct. 1949, 1957 (2010), the phrase means "not prohibited by the Constitution." But there has to be more to that definition.

Just what is prohibited by the Constitution? The powers granted to the Congress in the Constitution are known as "enumerated powers." These are found in Article I, Section 8, and they include the Commerce Clause and the Necessary and Proper Clause. Article II, Section 9 contains a list of things that Congress cannot do, and thus constitutes a clear delineation of acts that are "prohibited by the Constitution" that could not be enacted via the Necessary and Proper Clause. Please note that Article I, Section 9 says nothing about laws that seek to regulate economic inactivity. But is there more to consider?

One could argue that any act of Congress that would not be allowed under one of the enumerated powers--such as the Commerce Clause--would also be prohibited by the Constitution. That makes sense, but, just as the Commerce Clause does not contain the words "economic activity," the Constitution does not expressly say that an act that does not match one of the enumerated powers is also prohibited. The Founding Fathers certainly knew how to include language which expressly prohibited acts--Article I, Section 9 has lots of such language. And yet there is no such direct statement in Article I, Section 9. This again points out the problem with taking a literalist/strict constructionist view of the Constitution.

The question really is "What is 'prohibited by the Constitution' in the context of the Necessary and Proper Clause?" As will be shown in the discussion of Gonzales v. Raich (and more specifically in VI below) the answer is not crystal clear, to say the least.

However, as Chief Justice Marshall stated, even if something is not "prohibited by the Constitution," there is another part to his test under the Necessary and Proper Clause, namely that something must be "consistent with the letter and spirit of the Constitution." There is room for interpretation on that, and I will do some "interpretation" in VII below.

The problem for those wanting to invalidate the individual mandate is that there is precedent strongly in favor of the individual mandate being valid under the Necessary and Proper Clause, and it is almost time to discuss one of those decisions.

3. Applications of the Necessary and Proper Clause/Commerce Clause combination and the limitations thereof

Supreme Court precedent shows there are three general circumstances in which Congress can exercise power under the Commerce Clause:

Congress can regulate the channels of interstate commerce.
Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce.
Congress has the power to regulate activities that substantially affect interstate commerce.

Gonzales v. Raich, 545 U.S. at 16-17 (citations omitted). Only the third circumstance was at issue in Gonzales and the Virginia case involving the individual mandate.

So why am I listing law about the Commerce Clause in the section on the Necessary and Proper Clause? As explained by Justice Scalia in his concurring opinion in Gonzales,

activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone. Rather, as this Court has acknowledged since at least United States v. Coombs, 12 Pet. 72 (1838), Congress’s regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause.

545 U.S. at 34 (citations omitted). Scalia went on to describe the types of things that could be regulated by the Commerce Clause via the Necessary and Proper Clause.

And the category of “activities that substantially affect interstate commerce,” Lopez, supra, at 559, is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.
*******
As we implicitly acknowledged in Lopez, however, Congress’s authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” 514 U.S., at 561.
*******
The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself "substantially affect" interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561.

545 U.S. at 34-37 (footnote omitted). "Lopez" is United States v. Lopez, 514 U.S. 549 (1995), a case that will be discussed in detail in X.C below. Note that the Necessary and Proper Clause can be used to ultimately apply the Commerce Clause to 1) activities that are intrastate, 2) activities that are non-economic, 3) intrastate activities that do not themselves substantially affect interstate commerce, and 4) activities that are necessary to implementation of an overall regulatory scheme that does regulate interstate commerce.

Note also that everything described by Justice Scalia involves "activities."

At this point I must add that the above rules of law apply to matters that are also private in nature. See New York v. United States, 505 U.S. 144, 167 (1992); Hodel v. Virginia Surface Mining & Reclamation Association, Inc., 452 U.S. 264, 310 (1981) (Rehnquist, J., concurring); and National League of Cities v. Usery, 426 U.S. 833, 840 (1976). That means that these rules apply to matters that are private even if they might not be considered intrastate.

If an activity sought to be regulated meets the factors listed by Scalia, then the final test for proper application of the Necessary and Proper Clause must be satisfied. Here are two ways of describing that test:

The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power. Gonzales, 545 U.S. at 37 (Scalia, J., concurring).
[W]e look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power. Sabri v. United States, 541 U.S. 600, 605, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004) (using term "[130 S.Ct. 1957] means-ends rationality" to describe the necessary relationship)[.] U.S. v. Comstock, 130 S.Ct. 1949, 1956-1957 (2010).

There are limitations on this Necessary and Proper power. In addition to the admonitions of Chief Justice Marshall, Scalia explained other limitations on the Necessary and Proper Clause :

In Lopez and Morrison, the Court–conscious of the potential of the “substantially affects” test to “ ‘obliterate the distinction between what is national and what is local,’” Lopez, supra, at 566—567 (quoting A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 554 (1935)); see also Morrison, supra, at 615—616–rejected the argument that Congress may regulate noneconomic activity based solely on the effect that it may have on interstate commerce through a remote chain of inferences. Lopez, supra, at 564—566; Morrison, supra, at 617—618...Thus, although Congress’s authority to regulate intrastate activity that substantially affects interstate commerce is broad, it does not permit the Court to “pile inference upon inference,” Lopez, supra, at 567, in order to establish that noneconomic activity has a substantial effect on interstate commerce.

*******
Lopez and Morrison affirm that Congress may not regulate certain “purely local” activity within the States based solely on the attenuated effect that such activity may have in the interstate market.

545 U.S. at 35-38 (emphasis added). "Morrison" is United States v. Morrison, 529 U.S. 598 (2000), and that decision will be discussed in detail in X.C below. Justice Kennedy, in his concurring opinion in Comstock, described the test as

requir[ing] a tangible link to commerce, not a mere conceivable rational relation...The rational basis referred to in the Commerce Clause context is a demonstrated link in fact, based on empirical demonstration.

Comstock, 130 S.Ct. at 1967 (Kennedy, J., concurring).

And now it is time to apply all this law to the individual mandate, and I will do that by comparing it to the case of Gonzales v. Raich.

IV. An example of why the question of the constitutionality of the individual mandate is complicated: Gonzales v. Raich

As I said way back in the "first" post, I am not trying to present a detailed analysis of the Commerce Clause and Necessary and Proper Clause and their application to the individual mandate. I could write a very thick book on that subject and still not cover everything. Instead, I am going to compare the basic argument against the individual mandate to one previous decision by the Supreme Court, Gonzales v. Raich. That comparison will also include a case relied upon by the Court in Gonzales v. Raich--Wickard v. Filburn, 317 U.S. 11 (1942). What I will try to do is show why this issue of the individual mandate is not an easy one to resolve. With that in mind...

A. Basic description of the case and decision

In Gonzales v. Raich "Gonzales" was the U.S. Attorney General, and the non-government party I want to focus on was named Monson. Monson was growing her own marijuana for her medicinal purposes, as was legal under California law. It was grown and used only for her personal and medicinal purposes. There was no attempt or intent to sell the marijuana. There was no attempt to put the marijuana into interstate commerce. In other words, there was no "economic activity" and any activity was strictly private and intrastate in character. The DEA seized the plants pursuant to the Controlled Substances Act (CSA). Ultimately, the Supreme Court ruled that such action was constitutional under the Commerce Clause and the Necessary and Proper Clause. Indeed, the Court's decision turned primarily on the Necessary and Proper Clause, as shown in the opening paragraph of the majority opinion.

The question presented in this case is whether the power vested in Congress by Article I, §8, of the Constitution “[t]o make all Laws which shall be necessary and proper for carrying into Execution” its authority to “regulate Commerce with foreign Nations, and among the several States” includes the power to prohibit the local cultivation and use of marijuana in compliance with California law.

Gonzales, 545 U.S. at 5. Immediately after the quote in III.A above describing the "rational basis" test, the majority opinion said

Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U.S.C. § 801(5), and concerns about diversion into illicit channels, we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA...Congress was acting well within its authority to “make all Laws which shall be necessary and proper” to “regulate Commerce … among the several States.” U.S. Const., Art. I, §8. That the regulation ensnares some purely intrastate activity is of no moment.

545 U.S. at 23 (emphasis added). Again, to me this shows that the Court relied mainly on the Necessary and Proper Clause in making its ruling. More proof that the case was decided on the basis of the Necessary and Proper Clause is found in Justice Scalia's concurring opinion.

Other parts of the majority opinion show that the Court ruled that the Commerce Clause justified the DEA's action under the CSA because of the possibility that people other than Monson might grow their own marijuana and put it into the interstate market. Gonzales, 545 U.S. at 28-33. In other words, the Court ruled that the Commerce Clause was applicable to Monson even though the evidence established that she was not involved in any kind of commerce or interstate activity. Another way to put this is that the Court ruled that the Commerce Clause was applicable to Monson even though the evidence established that she chose not to engage in commerce and her activities were strictly intrastate and private in nature.

The majority relied heavily on the Court's decision in the 1942 case of Wickard v. Filburn, and the reasoning of that decision is relevant to the instant discussion. Specifically, the reason for and effect of the law at issue there is analogous to that of the individual mandate.

In Wickard v. Filburn the law in question was the Agricultural Adjustment Act of 1938, which had a formula which determined the maximum amount of wheat a given farm would be allowed to produce. Filburn, the farmer, was producing more than twice the amount called for under the law, and the federal government sought to fine him and destroy the "excess" amount of his wheat crop pursuant to the Agricultural Adjustment Act. Filburn argued that the "excess" was grown for his own use only and thus was not part of interstate commerce. The Supreme Court rejected that argument.

The Court's opinion, by Justice Jackson, had this to say about the Agricultural Adjustment Act:

The effect of the statute before us is to restrict the amount which may be produced for market and the extent as well to which one may forestall resort to the market by producing to meet his own needs. That appellee’s own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.

317 U.S. 127-128. In other words, the objectives were to 1) regulate the total amount of wheat in the interstate market so as to control prices, and 2) make sure that everyone--including farmers--would have to buy wheat for their own use from that market. Only in that way could the purpose of the legislation achieve its goals. And the only way to achieve those goals was to force farmers to comply with the law, or stated another way, force farmers to do something, namely limit their wheat production. If they did not, they would be penalized by a fine.

The Court in Gonzales v. Raich ruled that

Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.

545 U.S. at 18. (emphasis added). In Gonzales the Court went on to rule that if Congress had any rational basis for concluding that certain conduct could undercut the overall goals and objectives of legislation, that conduct could be regulated or compelled.

Here's how I see the Court's reasoning: 1) there is an interstate market for marijuana; 2) the federal government has a legitimate interest in regulating that interstate market; 3) marijuana grown for private purposes could conceivably find its way into the interstate market; 4) the seizure of Monson's plants was a "necessary and proper" means to regulate the interstate commerce of marijuana by prohibiting any intrastate growing of marijuana because 5) without such prohibition, the entire regulatory objectives of the CSA could fail.

With the foregoing in mind, let's look at some of the similarities between Gonzales and the individual mandate.

B. The primary similarities

I stated the basic argument against the individual mandate as follows:

[T]he Commerce Clause permits regulation of economic activity, and since the individual mandate seeks to penalize people for inactivity, it is not within the scope of the Commerce Clause. Another way to state this argument is to say that the individual mandate is not within the scope of the Commerce Clause because it seeks to force people to engage in an activity.

And here's how Judge Hudson put it:

Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.

I think the big problem with Judge Hudson's ruling is the ultimate determination of the constitutionality of the individual mandate depends not on the Commerce Clause, but on the Necessary and Proper Clause. Judge Hudson did make a ruling on the Necessary and Proper Clause, but as will be explained in X below, his ruling is incorrect.

My opinion is that in light of the ruling in Gonzales I don't see how the individual mandate is not constitutional under the Necessary and Proper Clause. A comparison of the facts in Gonzales and how the individual mandate would operate supports my opinion. For the individual mandate, people who would otherwise choose not to become part of commerce would be "forced" to become part of commerce by buying insurance or pay a penalty. To put it another way, a person who chose not to engage in an economic activity--buying health insurance--would be required to engage in an economic activity or pay a penalty. In Gonzales, Monson chose not to engage in any kind of commerce, but was nonetheless ruled to have an effect on commerce. Under the individual mandate, one must engage in commerce or get penalized. Monson was effectively forced into commerce even though she chose not to be and in fact was not engaged in any kind of economic activity and penalized by having her property seized. One could argue that Monson's fate was even worse than what would happen under the individual mandate. Under the individual mandate, one would get penalized for his own deliberate inaction. Monson got penalized in large part because of what other people might do. Not only that, but Monson was not given a choice in the matter, whereas under the individual mandate a person can choose between buying insurance or paying a penalty. And to top it off, Monson was engaged in wholly private and intrastate activity.

I'm not saying that Gonzales is exactly the same as any of the cases regarding the PPACA. I am, however, pointing out that Gonzales shows just how far the Supreme Court has been willing to expand justifications for federal law pursuant to the Commerce Clause and Necessary and Proper Clause. That same kind of rationale might be applied to the individual mandate.

V. Gonzales, the individual mandate, and activity

A. Overview

As shown above, there are strong similarities between the circumstances in Gonzales and the individual mandate. Moreover, the legal rationale used in Gonzales could be applied to the individual mandate in all regards--if not for one not-so-small detail. Recall that the main argument against the individual mandate is that it seeks to regulate inactivity rather than activity. Recall also that the law regarding the Necessary and Proper Clause as described by Justice Scalia involves activity.

Consequently, the legal meaning of "activity" is at the core of this whole matter, and for me, the core of that meaning is the overall regulatory objective of the PPACA. As I will explain, I think the "inactivity" argument fails if the overall regulatory objective is health care as opposed to health insurance. Conversely, I think the best way to try to invalidate the individual mandate is to show that the overall regulatory objective of the PPACA is health insurance.

B. Application of the Necessary and Proper Clause in Gonzales and how that compares to the individual mandate

Recall that in Gonzales Monson was not engaged in any commerce, was not engaged in any economic activity, and was engaged in activity that was completely private and intrastate in nature. That meant that the Commerce Clause was in no way directly applicable to Monson. Recall also that the Court found that the statute in question was an essential part of an overall regulatory scheme designed to regulate an interstate market. Because of all those factors, the Supreme Court ruled that the statute in question was constitutional and applicable to Monson because of the Necessary and Proper Clause.

Now compare that with the individual mandate in the context of the primary argument against it. That argument is based on a person not being involved in an economic activity--just like in Gonzales. That argument is based on a person not being engaged in any commerce--just like in Gonzales. And the individual mandate is an essential part of an overall regulatory scheme.

As I stated in my (first) lengthy post on health care, "if insurance is to be the foundation of a health care system, having a mandate that everyone have insurance really is key to trying to manage the cost of the insurance and provide coverage to everyone." Now I will go even further. Although the "reforms" of the PPACA are (in my opinion) the insurance exchanges and the consumer protection provisions (such as no more "preexisting conditions"), the key to any success of the PPACA is the individual mandate. As I tried to explain before, without the individual mandate, there is little chance of the insurance exchanges succeeding. Without the individual mandate, the insurance companies will try to get rid of the consumer protections (and there are rational business reasons for that). The key for any possible success under the PPACA is that everyone has health insurance, and the only way to ensure that happens is the individual mandate. The federal government made basically the same claims in the Virginia case. (Hudson Opinion, pp. 12-16). However, the feds also claimed that the regulatory objective is the health insurance market (as shown in part in V.D below). I think this is a potentially fatal mistake, but I will discuss that later. For now, let's assume that there is an interstate health insurance market.

That means that almost all of the same factors that led the Supreme Court to uphold the statute in Gonzales are present in regard to the individual mandate. Almost. The one thing missing for the individual mandate--according to the argument against it--is "activity." Or is it?

C. What isn't an "activity" in one market might be in another.

I am not going to examine what "the meaning of 'is' is," but it might seem like I am.

This is going to be the first of several contentions by me that making the regulatory objective of the PPACA health insurance rather than health care is a way to get the individual mandate found unconstitutional.

As shown in III.B.3 above, in order for a law to be proper under the Necessary and Proper Clause, it has to have a rational basis of relation to a regulatory objective that is proper under the Commerce Clause. For instance, in Gonzales, the law which called for the seizure of Monson's marijuana plants was not itself allowable under the Commerce Clause (since Monson was not engaged in any commerce and her activities were strictly intrastate and private), but since that law was deemed to be essential to regulation of an interstate market that was subject to Commerce Clause regulation, the law was deemed proper because of the Necessary and Proper Clause. Furthermore, Monson did engage in an activity of some sort, namely growing the plants. Hence, her case fit all the elements of law set out in both the majority opinion and Scalia's concurring opinion.

However, if regulation of the interstate health insurance market (assuming it is an interstate market) is the overall objective of the PPACA, then how can there be "activity" by someone who does not participate in that market? How can someone who does not buy health insurance engage in "activity" in the health insurance market? That is the essence of the argument against the individual mandate. And if the overall objective of the PPACA is regulation of the health insurance market rather than the health care market, that argument makes a lot of sense, and it might provide a way to get around all the law interpreting the Necessary and Proper Clause.

In my opinion, the situation changes if the overall regulatory objective of the PPACA is the health care market. Unlike health insurance, health care does not have to be purchased in the same state where a person lives. People can cross state lines to get health care. In other words, health care is an interstate market and is thus subject to regulation under the Commerce Clause. Under the Necessary and Proper Clause, then, Congress can pass laws which regulate some portion of the health care market which themselves are not proper under the Commerce Clause. Those laws can regulate non-commercial, non-economic, and private activities.

In the Virginia case, the feds argued that everyone is going to have to have health care at some point. I agree. That means that everyone at some point is going to get health care, which is going to need to be paid for. Today, the primary method of payment for health care is insurance, but that is not the only way, nor will it be the only possible way under the individual mandate. A person could choose not to get insurance, pay the penalty, and still pay for health care out of his own pocket. When all those factors are considered, then choosing not to buy insurance is a choice freely made. When combined with the fact that consumption of health care is inevitable, a case could be made that the decision to either acquire or forgo health insurance becomes an "activity" because it determines how one will pay for something--health care--that is part of interstate commerce. Stated differently, 1) obtaining health care is an activity in an interstate market; 2) that health care has to be paid for; 3) thus, paying for that health care is an activity in an interstate market; 4) deciding how to make that payment is necessarily an activity in an interstate market, and 5) deciding whether or not to buy health insurance is part of deciding how to pay for health and is thus an activity in an interstate market.

Here's the difference...As of now, everyone will necessarily participate in the health care market, while right now everyone does not have to participate in the health insurance market. If the health care market is the regulatory objective, then the individual mandate is not regulating whether someone enters that market. Instead, the individual mandate seeks to regulate a person's conduct after he enters that market. If the regulatory objective in the health insurance market, then the individual mandate does seek to regulate whether someone enters a given market.

There is a potential flaw in my analysis on this point. It depends in what Judge Hudson termed a "future contingency," namely people needing health care in the future. Admittedly, basing a regulation on what people might do in the future does not seem right (although it was not a problem in Gonzales). However, I think health care presents almost no future contingency. There are lots of people who need health care right now. There are plenty of people (such as people with chronic diseases or conditions) that we know will need health care in the future. And we all know that pretty much everyone alive now and in the future is going to need health care at some point. All of this is beyond dispute. To put it another way, needing health care is not a matter of "if" but "when."

And there is yet another potential problem with my analysis, naley that making decision is not the same as doing something. For instance, I might decide to go workout, but if I never get up to actually exercise, does my decision count as an "activity?" That sort of question is addressed in V.D.

D. But wait...there's more regarding "activity," or "fun with words."

1. Dictionary definitions of "economic" and "activity"

There is yet another element to the "activity" argument. It relates to the meaning of "economic." In the Gonzales majority opinion, Justice Stevens, in discussing the decisions in U.S. v. Morrison and U.S. v. Lopez (see X.B below), wrote the following:

Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. "Economics" refers to "the production, distribution, and consumption of commodities." Webster's Third New International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.

Gonzales, 545 U.S. at 25-26. It is possible that health care and health insurance are "commodities?" If so, then is the decision on how to pay for either health care or health insurance "economic" in nature? If the answer to that question is "yes," then does that decision become an "activity?" It seems to me that it does. The federal government raised this basic argument, although judging from Judge Hudson's opinion, the feds did not use the definition of "economics" cited by Justice Stevens. See Hudson Opinion, pp. 11-12. Here is the basic argument from the feds:

Critical to the Secretary's argument is the notion that an individual's decision not to purchase health insurance is in effect "economic activity." (Def.'s Mem. Supp. 35.) The Secretary rejects the Commonwealth's implied premise that a person can simply elect to avoid participation in the health care market. It is inevitable, in her view, that every individual”today or in the future”healthy or otherwise”will require medical care. She adds that a large segment of the population is uninsured and "consume[s] tens of billions of dollars in uncompensated care each year." (Def.'s Mem. Opp. 14.) The Secretary maintains that the irrefutable facts demonstrate that "[t]he conduct of the uninsured”their economic decision as to how to finance their health care needs, their actual use of the health care system, their migration in and out of coverage, and their shifting of costs on to the rest of the system when they cannot pay”plainly is economic activity." (Def.'s Mem. Opp. 16-17.)
*******
The core of the Secretary's primary argument under the Commerce Clause is that the Minimum Essential Coverage Provision is a necessary measure to ensure the success of its larger reforms of the interstate health insurance market. The Secretary emphasizes that the ACA is a vital step in transforming a currently dysfunctional interstate health insurance market. In the Secretary's view, the key elements of health care reform are coverage of those with preexisting conditions and prevention of discriminatory premiums on the basis of medical history. These features, the Secretary maintains, will have a material effect on the health insurance underwriting process, and inevitably, the cost of insurance coverage...Therefore, under the Secretary's reasoning, since Congress has the power under the Commerce Clause to reform the interstate health insurance market, it also possesses, under the Necessary and Proper Clause, the power to make the regulation effective by enacting the Minimum Essential Coverage Provision.

(Hudson Opinion, pp. 12-13)(footnotes omitted). I hope the reader now sees why I said in V.B above that the feds claimed that the overall regulatory objective of the PPACA is the health insurance market. There were points where the feds referred to the health care market, but, if Judge Hudson's Opinion accurately stated the arguments, the feds kept coming back to talking about the health insurance market.

In any event, the feds argued that deciding not to buy health insurance was an "economic activity," and under the definition of "economics" in Gonzales, an argument could be made that any decision made by a person regarding insurance is an "economic activity." I still think that is a stretch if the overall objective of the PPACA is regulating insurance, but the argument could be made.

That argument would be strengthened by another definition for "economic" found at Dictionary.com. That site had the same definition as used by Justice Stevens, but it also had this definition: "involving or pertaining to one's personal resources of money." Under that definition, a decision regarding whether or not to buy health insurance is an economic activity. However, that does not end the inquiry. Under that definition, potentially almost every decision a person makes would be an "economic activity." So where is the line to be drawn if there is to be any limit on the government's powers? Then again, it seems to me that sometimes a decision necessarily is an activity.

So let's look at a definition for "activity." I found this definition on Dictionary.com as well: "normal mental or bodily power, function, or process." And then there's this definition from the Merriam-Websiter site: "natural or normal function: as... a similar process actually or potentially involving mental function[.]" Under either of these definitions when one has a choice to make and makes a decision about that choice, one has engaged in an activity. Still the "line drawing" issue exists.

In the context of Commerce Clause/Necessary and Proper Clause questions, it seems to me that if a given decision is part of a direct line of circumstances that ends in having an effect on a market that is subject to Commerce Clause regulation, that decision is at least an activity and at most an economic activity. The decision cannot have an attenuated or highly inferential effect on an interstate market. And if that is the case, then the individual mandate does not seek to regulate inactivity.

Isn't this fun?

I have to admit that I have found no precedent that supports my little word game here. However, in Gonzales the Supremes did use a dictionary definition of "economics" as a key part of the reasoning for the decision. They did not do the same for "activity," and as I have framed the issue, the meaning of "activity" is central to determining whether the individual mandate comes within the scope of the Necessary and Proper Clause.

2. More on health care as opposed to health insurance

I know I sound like a broken record, but I will say again that my view depends on the health care market being the regulatory objective of the PPACA. I will try to explain this in the context of my "line drawing" three paragraphs above. If the regulatory objective is the health insurance market, the analytical focus is too narrow. If the regulatory objective is the health care market, it is much easier to argue that the decision to buy or not to buy insurance has an impact on the market sought to be regulated because health care will be consumed by each person, that health care needs to be paid for, the decision regarding insurance determines how a person will pay for health care, and thus that decision is part of a direct line of circumstances that affects interstate market (health care) that can be regulated under the Commerce Clause.

If the regulatory objective is only the health insurance market, there is still the problem of the individual mandate basically compelling someone to enter a market. Assuming that the health insurance market is interstate, my "word game theory" could be used to rule that the individual mandate is constitutional. However, if a line is to be drawn, it is going to be a lot easier than if the objective is regulation of the health care market. Why? Because no one has to be forced or compelled into entering the health care market. That's the case now, and that will always be the case. By contrast, right now people do not have to enter the health insurance market. The individual mandate seeks to essentially change that. Regardless of the the legal technicalities, there is something about that change that doesn't seem right to a lot of people.

There is another problem concerning the health insurance market. I will discuss that in detail in XI.C, but for now I will say that there is a chance that the market for health insurance is not an interstate market, and if that is the case, AND the regulatory objective of the PPACA is the health insurance market, then the individual mandate is doomed.

VI. What about "prohibited by the Constitution?"

Recall that in order for a law to be upheld under the Necessary and Proper Clause, it must not be "prohibited by the Constitution." In discussing this element in III.B.2 above I said Gonzales would show that the precise meaning of this phrase is not crystal clear. I also noted that there is no express language in the Constitution which prohibits laws regulating economic activity, nor is there express language saying that laws which do not come within the enumerated powers of Article I, Section 8 are prohibited.

And indeed, Gonzales shows that laws that do not by themselves come within the enumerated power of the Commerce Clause are not necessarily "prohibited by the Constitution." Recall that the law in question in Gonzales sought to regulate conduct that was non-economic, non-commercial, and completely intrastate. As such, there was no way that the Commerce Clause applied to that law or conduct. Moreover, I submit that that law--which made the growing of marijuana illegal--does not come within the express language of any of the other enumerated powers of Article I, Section 8. Yet the Supreme Court upheld that law via the Necessary and Proper Clause.

I see the same rationale applying to the individual mandate--as long as the overall regulatory objective of the PPACA is health care.

VII. What about "consistent with the letter and spirit of the Constitution?"

I think my analysis concerning "prohibited by the Constitution" applies equally to this question. Granted, the the basic argument against the individual mandate--regulating inactivity and forcing someone to do so something--at the least seems like a violation of the spirit of the Constitution. The principles involved in the argument against the individual mandate are personal liberty and the desire to be free from government intrusion on that liberty.

And to that I have three responses. First, in terms of violating personal liberty, I think the circumstances of Gonzales are worse than the individual mandate. In Gonzales, Monson was doing something that was strictly for her own personal purposes. Moreover, what she was doing was legal under California law, and she had no intention to do anything illegal. She was not involved in any kind of commerce and had no intention of changing that. She was basically minding her own business, not harming anyone, was not a threat to harm anyone, and she was acting within California law. Not only was her personal liberty basically violated, but the basis for that was what other people might do. And yet, the Supreme Court found that the federal law which effected such an encroachment on her personal liberty did not violate the spirit of the Constitution.

Second, although I think most of us view the Constitution primarily as establishing rights related to personal liberty (for example, the Bill of Rights). While the Constitution certainly does that, that is not all it does. The Constitution also establishes the responsibilities and powers of the federal government. Those also have to be enforced, and over the years, the Supreme Court has certainly done that. Again, I am not saying that is right or wrong. I am simply saying that's the way it is. I am also saying that the spirit of the Constitution also involves protecting the power and authority of the federal government. What I am trying to say is that even if the individual mandate is not within the Constitution's spirit of personal liberty, it could still be within the Constitution's spirit of preserving the power and authority of the federal government. Recall that I said this case is ultimately about drawing a line regarding Congress's power under the Commerce Clause and Necessary and Proper Clause. Stated differently, it is about finding a balance between personal liberty and federal government power. Based on existing precedent--like Gonzales--I do not think that the individual mandate is sufficiently violative of the spirit of the Constitution to be illegal. However, the Supreme Court could feel otherwise, and the Justices are absolutely free to say so.

Third, under the applicable law on the Necessary and Proper Clause, Congress can pass laws that regulate private activities. One could strongly argue that the decisions on how to pay for health care and whether to buy insurance is strictly a private matter. If that argument is accepted, such private conduct is still within the reach of the Commerce Clause by virtue of the Necessary and Proper Clause.

In spite of the foregoing, I think that this aspect of the law could be a basis for overturning the individual mandate. The Justices of the Supreme Court do not bend with the political winds, as in they are not the poll-watching, pandering whores that some politicians are, but they are also not out of touch with common sense and a sense of fairness. The core argument against the the individual mandate contains a strong "it is against the spirit of the Constitution" element, and that could well provide the impetus for a majority of the Justices to modify existing precedent in order to declare the individual mandate unconstitutional. And, to continue my broken record, the "against the spirit of the Constitution" argument is much stronger if the purpose of the PPACA is regulation of health insurance.

VIII. What about the requirement that the individual mandate be “reasonably adapted” to the regulatory objective of the PPACA?

It seems to me that the individual mandate meets this requirement--as long as the focus is on regulating health care.

The individual mandate is "reasonably adapted” and "rationally related" to the attainment of a legitimate end under the commerce power. The health care market is interstate in nature, and thus subject to Commerce Clause regulation. The PPACA seeks to regulate the health care market by making sure that more people have access to it. The PPACA seeks to regulate that market by instituting consumer protections regarding health insurance. The PPACA seeks to regulate that market by instituting measures intended to reduce costs (scant as they may be). And as I have said before, the individual mandate is the key to all of that. At least that's the argument. I am far from convinced that the PPACA is going to achieve those goals, but the way it is set up, the individual mandate is, as the feds argued in the Virginia case, the linchpin to the whole deal.

Getting back to my not being convinced that the PPACA will work...I still think the PPACA is not real reform of the health care system and that there is little in the PPACA that actually addresses reducing the actual cost of actual health care. However, the question as to the constitutionality of the individual mandate via the Necessary and Proper Cause is NOT whether the PPACA will actually work. I do not think the Supreme Court has the authority to try to determine whether the PPACA will work. The question is twofold: 1) does the PPACA seek to regulate the health care market (which is a proper objective under the Commerce Clause), and 2) is the individual mandate rationally related to that objective? I don't see how the answer can be anything but "yes."

IX. What about a "remote chain of inferences?"

In short, there is not one.

Again, my answer is based on the PPACA regulating health care rather than just health insurance. I explained some of the reasons why I think the argument for the individual mandate must be based on the PPACA regulating health care in III.A (purchasing health insurance is an intrastate activity and thus one could argue there is no interstate health insurance market), V.C (not buying health insurance is not engaging in "activity" in the health insurance market), and V.D.2 (easier to draw a line of limitation for health insurance), and a further explanation will come in Section XI.

My answer regarding a remote chain of references is based on the argument I made in V.C regarding "activity." Once again, here it is: 1) obtaining health care is an activity in an interstate market; 2) that health care has to be paid for; 3) thus, paying for that health care is an activity in an interstate market; 4) deciding how to make that payment is necessarily an activity in an interstate market, and 5) deciding whether or not to buy health insurance is part of deciding how to pay for health and is thus an activity in an interstate market.

To put it in the language of the test as set out in III.B.3 above, there is a tangible link between the individual mandate and interstate commerce. The individual mandate is about regulating the decision on how to pay for health care, and there's nothing more tangible than the payment for services and commodities. Also, there is no "remote chain of inferences" or "piling of inference upon inference." It is a fact that everyone either currently needs or will need health care. It is a fact that such health care is going to need to be paid for. It is a fact that, even under the individual mandate, people are going to have to pay for health care through insurance or some other means. There are no inferences there. Any decision as to how health is to be paid for is a demonstrable, empirical link to the interstate market of health care. And the individual mandate seeks to regulate that decision process.

X. Direct criticism of Judge Hudson's opinion regarding the Necessary and Proper Clause

A. Overview

In the "first post" I quoted the following statement from Judge Hudson's Opinion:

If a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.

(Hudson Opinion, p. 19). Based on this reasoning, Judge Hudson's actual ruling on the Necessary and Proper Clause was as follows:

Because an individual's personal decision to purchase”or decline to purchase” health insurance from a private provider is beyond the historical reach of the Commerce Clause, the Necessary and Proper Clause does not provide a safe sanctuary. This clause grants Congress broad authority to pass laws in furtherance of its constitutionally enumerated powers. This authority may only be constitutionally deployed when tethered to a lawful exercise of an enumerated power. See Comstock, 130 S.Ct. at 1956-57. As Chief Justice Marshall noted in McCulloch, it must be within "the letter and spirit of the constitution." 17 U.S. (4 Wheat.) at 421. The Minimum Essential Coverage Provision is neither within the letter nor the spirit of the Constitution. Therefore, the Necessary and Proper Clause may not be employed to implement this affirmative duty to engage in private commerce.

(Hudson Opinion, p. 24). There are many problems with Judge Hudson's reasoning and ruling. First and foremost, Judge Hudson completely ignored Gonzales--as in his statements are contradicted by the law and facts in Gonzales and he did not even address Gonzales in a substantive way. In other words, his statements are wrong in light of Gonzales and he did not even bother to try to explain why Gonzales did not control. Instead, he accepted faulty arguments by Virginia and then incorrectly relied on two other Supreme Court decisions, United States v. Morrison, 529 U.S. 598 (2000), and United States v. Lopez, 514 U.S. 549 (1995). Morrison and Lopez are distinguishable from the circumstances of the individual mandate, meaning they are not controlling on the question of whether the individual mandate is constitutional under the Necessary and Proper Clause.

B. Judge Hudson ignored the law.

As shown by the two above excerpts from Judge Hudson's Opinion, he basically ruled that since the individual mandate on its own violated the Commerce Clause, it also violated the Necessary and Proper Clause. Orin Kerr, a law professor, made the following comments about this part of the ruling:

Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect. The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I. If you say, as a matter of “logic” or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity. But that’s not how the Supreme Court has interpreted the Clause, from Chief Justice Marshall onwards. Indeed, as far as I know, not even the most vociferous critics of the mandate have suggested that the Necessary and Proper Clause can be read this way.

Some have said that Professor Kerr has misread what Judge Hudson wrote. They maintain that Judge Hudson was saying that while the means chosen by Congress to carry out a law do not have to be listed in the Constitution, that law itself must be constitutional when considered by itself. I agree with that assessment, but that does not make Judge Hudson's statement correct. Judge Hudson’s ruling ignores the law that says that even if a given law on its own does not come within the Commerce Clause, it could still be constitutional via the Necessary and Proper Clause.

The reason Judge Hudson did not cite any authority (that is, precedent or other law) is because the existing authority shows Judge Hudson was and is wrong. Judge Hudson's ruling completely ignores the law as clearly set out in Gonzales, in particular Justice Scalia's statements that "activities that substantially affect interstate commerce are not themselves part of interstate commerce, and...Congress’s regulatory authority over intrastate activities that are not themselves part of interstate commerce...derives from the Necessary and Proper Clause." Judge Hudson also apparently forgot about this part of the majority opinion in Gonzales: "Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself 'commercial,' in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity." In other words, the applicable law holds that conduct that, standing alone, cannot be regulated through direct application of the Commerce Clause can still be regulated through the Necessary and Proper Clause. In light of that law, Judge Hudson is simply wrong.

That Judge Hudson failed to apply the correct law is seen in this statement from his Opinion: "Whether the [individual mandate], which requires an individual to purchase health insurance or pay a penalty, is borne of a constitutionally-enumerated power, is the core issue in this case." (Hudson Opinion, p. 17). He missed the point completely. The core issues were and are 1) whether the PPACA as a whole regulates an interstate market, and 2) whether the individual mandate is allowable under the Necessary and Proper Clause as part of the overall regulatory objective.

It seems to me that Judge Hudson considers the individual mandate the "end" rather than the "means." That might be fine if the true, overall objective of the PPACA is the regulation of the health insurance market. However, I think the overall objective of the PPACA is regulation of the health care market, which clearly is an interstate market, and that means the overall objective of the PPACA is allowable under the Commerce Clause. The individual mandate is a means by which to accomplish that objective, and thus is allowable under the Necessary and Proper Clause. This is the approach the Supreme Court used in Gonzales. The Court ruled there was an interstate market for marijuana, the CSA was an attempt to regulate that market pursuant to the Commerce Clause, and the seizure of Monson's plants was a "necessary and proper" means by which to carry out that regulation of an interstate market. Keep in mind also that the Court acknowledged that Monson was engaging in an intrastate activity, meaning that on the surface, the Commerce Clause (intended only for interstate commerce) could not apply to Monson. It was only through the "necessary and proper" step of the CSA which called for seizure of the plants that such seizure was constitutional.

Basically, it appears to me that Judge Hudson applied a Commerce Clause analysis to the individual mandate as if it was a stand-alone provision. To be fair to Judge Hudson, some of the language contained in § 1501 of the PPACA (the individual mandate) could be construed as Congress claiming that the individual mandate by itself is a proper exercise of power under the Commerce Clause (see XI.B below), but I don't think that conclusion is warranted when the PPACA is viewed as a whole. If the individual mandate had been a stand-alone piece of legislation, I don't think it could be constitutional under the Commerce Clause (see XI.C below)--and that would mean that the Necessary and Proper Clause would not even enter into the analysis. However, the individual mandate is not a stand-alone provision. It is one part of an overall regulatory scheme that has as its objective regulation of the health care market. As such the individual mandate does not have to be constitutional under the Commerce Clause because of the effect of the Necessary and Proper Clause. That is the reasoning in Gonzales.

There is another problem with Judge Hudson's ruling. If he was not merely viewing the individual mandate alone as needing to pass muster under the Commerce Clause, then Professor's Kerr's criticism is correct. It seems clear that under the Necessary and Proper Clause, a provision of a law that is a means rather than an end does not have to be constitutional under the Commerce Clause. If Judge Hudson was viewing the individual mandate as a "means," it seems to me that his reasoning would render the Necessary and Proper Clause--as applied in Commerce Clause precedent (such as Gonzales)--a nullity because it would require that "means" must by themselves comply with the Commerce Clause before they could be considered "necessary and proper." That simply is not the law, and Judge Hudson's rulings are wrong.

C. Hudson accepted faulty arguments and relied on inapplicable precedent.

For me the biggest weakness in Judge Hudson's opinion is that he did not address any of the arguments I set out above concerning Gonzales and Wickard. He stated the arguments each side made as to those cases. As noted earlier, the feds' arguments were close to the arguments I have made--with the exception of the feds basing the arguments on an interstate health insurance market, but Judge Hudson's opinion never explained why those arguments are incorrect. Instead, he stated Virginia's abbreviated arguments regarding Gonzales and Wickard, accepted them, and then made an incorrect statement about Commerce Clause precedent. Here's what Virginia argued regarding Gonzales and Wickard:

In their opposition, the Commonwealth focuses on what it perceives to be the central element of Commerce Clause jurisdiction, "economic activity." The Commonwealth distinguishes what was deemed to be "economic activity" in Wickard and Gonzales, namely a voluntary decision to grow wheat or cultivate marijuana, from the involuntary act of purchasing health insurance as required by the Provision. In Wickard and Gonzales, individuals made a conscious decision to grow wheat or cultivate marijuana, and consequently, voluntarily placed themselves within the stream of interstate commerce. Conversely, the Commonwealth maintains that the Minimum Essential Coverage Provision compels an unwilling person to perform an involuntary act and, as a result, submit to Commerce Clause regulation.

(Hudson opinion, pp. 17-18). In my view, Virginia's position is wrong as it relates to Gonzales. As explained in IV above, in Gonzales, Monson deliberately chose NOT to engage in any economic activity. Monson chose to engage in strictly non-economic and intrastate activities, and yet the Supreme Court ruled that activity ultimately to be subject to regulation under the Commerce Clause. Moreover, Monson was forced into "interstate commerce," and that was based not on what she did, but on what others might do. In fact, the Supreme Court in Gonzales acknowledged that Monson's activity was intrastate in character but ruled that that did not matter and still applied the Commerce Clause to her! In other words, there was nothing about Monson's conduct that was economic or interstate, and she certainly did not voluntarily place herself into interstate commerce. She deliberately kept from doing that. Thus, Virginia's characterization of Gonzales is simply wrong.

Hudson, however, apparently accepted that position and used it as a basis for this portion of his Opinion:

In surveying the legal landscape, several operative elements are commonly encountered in Commerce Clause decisions. First, to survive a constitutional challenge the subject matter must be economic in nature and affect interstate commerce, and second, it must involve activity. Every application of Commerce Clause power found to be constitutionally sound by the Supreme Court involved some form of action, transaction, or deed placed in motion by an individual or legal entity.

(Hudson Opinion, p. 23) (emphasis added). The emphasized language disregarded the law set out by Scalia in Gonzales that even noncommercial activity is subject to regulation under the Commerce Clause via the Necessary and Proper Clause. Judge Hudson also disregarded what happened in Gonzales. He never mentioned the fact that Monson's conduct in Gonzales was non-economic. In short, he disregarded the facts and law in Gonzales relevant to the Necessary and Proper Clause and did not try to explain how those were not relevant or applicable to the individual mandate. Let me put this another way. If Judge Hudson's above statements are correct, then the result in Gonzales would have been the opposite of what it was. If Judge Hudson is correct, then Gonzales would have been reversed by now, but that has not happened. Gonzales is still current law, and Judge Hudson's "rulings" disregard that law without any attempt at an explanation.

Instead, Judge Hudson, like Virginia, relied on two other Supreme Court decisions, Lopez and Morrison. The arguments I have presented in favor of the constitutionality of the individual mandate are based on it being an essential part of an overall regulatory scheme. That is the same basis upon which the laws at issue in Gonzales were found constitutional. In his concurring opinion in Gonzales, Justice Scalia shows why Morrison and Lopez are not applicable when the individual mandate is evaluated on this basis:

Neither case involved the power of Congress to exert control over intrastate activities in connection with a more comprehensive scheme of regulation; Lopez expressly disclaimed that it was such a case, 514 U. S., at 561, and Morrison did not even discuss the possibility that it was. (The Court of Appeals in Morrison made clear that it was not. See Brzonkala v. Virginia Polytechnic Inst., 169 F.3d 820, 834-835 (CA4 1999) (en banc).)

545 U.S. at 35 (emphasis added). At this point, I remind the reader that the applicable law on the Necessary and Proper Clause applies not just to intrastate activities, but private activities as well (see II.B.3 above).

The law in question in Lopez was the Gun-Free School Zones Act of 1990, which was a brief, single-subject statute making it a crime for an individual to possess a gun in a school zone. In other words, the statute was a stand-alone law. It was not part of an overall regulatory scheme. The Supreme Court ruled as follows:

Section 922(q) is a criminal statute that by its terms has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms. Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intra-state activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.

Lopez, 514 U. S. at 561. Thus, while Lopez does set out limitations on the Commerce Clause power, those limitations are not applicable to the individual mandate.

In Morrison, the law at issue was part of the Violence Against Women Act, specifically 42 U.S.C. §13981, which created a federal civil remedy for the victims of gender-motivated crimes of violence. The Supremes held that law not to be allowed under the Commerce Clause. Here's how Justice Stevens (in the majority opinion in Gonzales) described the ruling in Morrison:

Despite congressional findings that such crimes had an adverse impact on interstate commerce, we held the statute unconstitutional because, like the statute in Lopez, it did not regulate economic activity. We concluded that "the noneconomic, criminal nature of the conduct at issue was central to our decision" in Lopez, and that our prior cases had identified a clear pattern of analysis: "'Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.'" Morrison, 529 U. S., at 610.

Gonzales, 545 U.S. at 25 (footnote omitted). At first that might seem to support an argument against the individual mandate, but a closer look shows that it does not. Remember that the argument I have presented in favor of the invidual mandate is based on the Necessary and Proper Clause. In Gonzales, the Supreme Court upheld the law in question even though the conduct involved was noneconomic. That was done because the law was part of an overall regulatory scheme that as a whole regulated economic activity that affected an interstate market. And that is the situation involving the individual mandate. Also, the statute in Morrison was part of a statutory scheme, but that statutory scheme did not regulate an interstate market. Hence, Morrison is irrelevant to the question of whether the individual mandate is constitutional via the Necessary and Proper Clause in connection with the Commerce Clause.

XI. Insurance and interstate commerce as defined by the Supreme Court

A. Overview

As mentioned in VI.C.3 above, there is law which declares that insurance is--to some extent--interstate commerce. I think that if the Supreme Court is to declare the individual mandate unconstitutional, that ruling will be based on changes or modifications in that law. Furthermore, that is why I think basing the argument for the individual mandate on the health insurance market is a mistake.

The Supreme Court consistently ruled that insurance was not part of interstate commerce and thus beyond federal regulation until 1944. That’s when the Supremes ruled in U.S. v. South-Eastern Underwriters Ass’n, 322 U.S. 553 (1944), that the “business of insurance” was interstate commerce. That ruling has not been reversed, so it is still the law. That might at first indicate that there is thus no question that the individual mandate is constitutional, but that might not be the case now or in the semi-near future.

This subsection will examine the reasons for my previous sentence. I will be going into some semi-detailed legal analysis. If you should think that such analysis is getting too picky and technical and/or semantic, it is again the proverbial tip of the iceberg. Supreme Court rulings typically go into far more in-depth analysis than what you will see here.

B. Health insurance: intrastate or interstate commerce?

In South-Eastern Underwriters, Justice Black, writing for the majority, set out a number of reasons why "the business of insurance" was interstate commerce. All of those reasons make sense in light of the "effect" and "rational basis" tests for determining if something is subject to the Commerce Clause, but I eventually will focus on one specific sentence from Justice Black which could be the basis for ruling that in this case regarding health insurance the Commerce Clause does not apply. I also note that South-Eastern Underwriters did not address health insurance.

But first, let's look at the rest of Justice Black's reasoning. Here is a large portion:

Ordinarily courts do not construe words used in the Constitution so as to give them a meaning more narrow than one which they had in the common parlance of the times in which the Constitution was written. To hold that the word "commerce," as used in the Commerce Clause, does not include a business such as insurance would do just that. Whatever other meanings "commerce" may have included in 1787, the dictionaries, encyclopedias, and other books of the period show that it included trade: business in which persons bought and sold, bargained and contracted. And this meaning has persisted to modern times. Surely, therefore, a heavy burden is on him who asserts that the plenary power which the Commerce Clause grants to Congress to regulate "Commerce among the several States" does not include the power to regulate trading in insurance to the same extent that it includes power to regulate other trades or businesses conducted across state lines.

The modern insurance business holds a commanding position in the trade and commerce of our Nation. Built upon the sale of contracts of indemnity, it has become one of the largest and most important branches of commerce. Its total assets exceed $37,000,000,000, or the approximate equivalent of the value of all farm lands and buildings in the United States. It annual premium receipts exceed $6,000,000,000, more than the average annual revenue receipts of the United States Government during the last decade. Included in the labor force of insurance are 524,000 experienced workers, almost as many as seek their livings in coal mining or automobile manufacturing. Perhaps no modern commercial enterprise directly affects so many persons in all walks of life as does the insurance business. Insurance touches the home, the family, and the occupation or the business of almost every person in the United States.

This business is not separated into 48 distinct territorial compartments which function in isolation from each other. Interrelationship, interdependence, and integration of activities in all the states in which they operate are practical aspects of the insurance companies' methods of doing business. A large share of the insurance business is concentrated in a comparatively few companies located, for the most part, in the financial centers of the East. Premiums collected from policyholders in every part of the United States flow into these companies for investment. As policies become payable, checks and drafts flow back to the many states where the policyholders reside. The result is a continuous and indivisible stream of intercourse among the states composed of collections of premiums, payments of policy obligations, and the countless documents and communications which are essential to the negotiation and execution of policy contracts. Individual policyholders living in many different states who own policies in a single company have their separate interests blended in one assembled fund of assets upon which all are equally dependent for payment of their policies. The decisions which that company makes at its home office -- the risks it insures, the premiums it charges, the investments it makes, the losses it pays -- concern not just the people of the state where the home office happens to be located. They concern people living far beyond the boundaries of that state.

322 U.S. 539-542 (footnotes omitted). Or put more succinctly, insurance companies engage in "activities which, as part of the conduct of a legitimate and useful commercial enterprise, may embrace integrated operations in many states and involve the transmission of great quantities of money, documents, and communications across dozens of state lines." 322 U.S. at 550. Like I said, all of that makes sense in light of the "effect" and "rational basis" tests. Also, as shown in Judge Hudson's ruling, the arguments raised by the feds in the Virginia case were similar.

Moreover, the PPACA itself contains statements echoing Justice Black's rationale. Section 1501 of the PPACA is the individual mandate (called "individual responsibility" in the PPACA). Section 1501 (a)(1) says "The individual responsibility requirement provided for in this section (in this subsection referred to as the ‘‘requirement’’) is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2). " Paragraph 2 contains all kinds of facts and figures showing how health insurance and all the integrated activities and decisions related thereto affect the national economy. Recall the discussion in III.A above about the Courts showing great deference to Congressional findings and declarations. By the way, these portions of § 1501 are those which could be construed as Congress claiming that the individual mandate by itself is a proper exercise of power under the Commerce Clause.

Again, on the surface, all of that reasoning makes sense under applicable precedent concerning the Commerce Clause, but now it's time to look at one other statement by Justice Black. In describing the nature of Congressional power under the Commerce Clause, he said

its purpose is not confined to empowering Congress with the negative authority to legislate against state regulations of commerce deemed inimical to the national interest. The power granted Congress is a positive power . It is the power to legislate concerning transactions which, reaching across State boundaries, affect the people of more states than one[.]

322 U.S. at 511-552 (footnotes omitted) (emphasis added). And this is where 1) the nature of health insurance and 2) the basis for the government's arguments in the Virginia case could become important. As I have said several times, one cannot live in one state and buy health insurance in another state. A person can buy health insurance only in his state of residence. That makes purchasing health insurance strictly an intrastate matter, and Congress has no power under the Commerce Clause to regulate intrastate commerce. In other words, in a sense, purchasing health insurance, to use Justice Black's wording, is NOT a transaction reaching across State boundaries. Or as I put it earlier, it seems there is no such thing as an interstate health insurance market. And yet, according to Judge Hudson's Memorandum Opinion, the federal government's arguments are based on the claim that the PPACA is all about reform of the interstate health insurance market. My point is there is a basis for claiming that the health insurance market is an intrastate market not subject to federal regulation AND that it seems that the feds are putting all their eggs in an interstate health insurance market basket. Those two facts could present an opening for the Supreme Court to rule that the individual mandate is unconstitutional.

One might argue that I am splitting hairs, talking semantics, being hyper-technical, etc., especially in light of all the precedent applying the "effect" and "rational basis" tests, and that argument might be correct. However, what I am trying to point out here is that IF the Supreme Court wants to declare the individual mandate unconstitutional, what I have presented in the previous paragraph could be the way the Court gets it done.

There are plenty of counterarguments--and some of them I have already raised in arguing that the health care market is interstate in nature. Insurance pays for health care, and if health care is interstate, then health insurance clearly has an affect on interstate commerce. And like Justice Black stated in South-Eastern Underwriters, money paid for policies crosses state lines, home offices of insurers are located in various cities across the nation, those companies employ people in differing states, etc.

However, as alluded to in the last paragraph of the opening section of the "first post," this question of the individual mandate is ultimately about drawing a line regarding Congressional power under the Commerce Clause. Given that this is a question of first impression, simply relying upon and applying previous precedent without any further explanation would not draw a line at all. And like I said, even if the individual mandate is upheld, there needs to be some further definition regarding application of the Commerce Clause. Consequently, the simple form of the counterarguments mentioned in the previous paragraph might not be enough to uphold the individual mandate. And if a majority of the Justices want to use this question as an opportunity to narrow the scope of the Commerce Clause, they could very well look for a way to claim that health insurance is not interstate commerce, and I think what I have suggested is a start. They would have to modify previous precedent and its application to health insurance--and they are under no constraint in that regard. They can do whatever they want. I still think any ruling that the individual mandate is unconstitutional will be narrow in scope, but more on that later...

C. "The business of insurance"

Section 1501(a)(3) of the PPACA says "In United States v. South-Eastern Underwriters Association (322 U.S. 533 (1944)), the Supreme Court of the United States ruled that insurance is interstate commerce subject to Federal regulation." That is not entirely accurate. What the Supreme Court ruled was that "the business of insurance" was interstate commerce. Thus, the effect of South-Eastern Underwriters on the individual mandate depends on the meaning of the phrase "the business of insurance."

Now here's where things get a little tricky. I have found some Supreme Court cases defining the term, but they define the term in the context of statutory law known as the McCarran-Ferguson Act. As explained by the Supremes in Humana , Inc. v. Forsythe, 525 U.S. 299, 306 (1999), "Concerned that our decision (in South-Eastern Underwriters) might undermine state efforts to regulate insurance, Congress in 1945 enacted the McCarran-Ferguson Act." The first part of McCarran-Ferguson, 15 U.S.C. § 1011, says that

Congress hereby declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States.

In other words, regulation of insurance is primarily left to the States, not the federal government. The next part of McCarran-Ferguson, 15 U.S.C. § 1012(a), makes sure of this:

(a) State regulation

The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business.

(emphasis added). 15 U.S.C. § 1012(b), however, carves out an exception:

(b) Federal regulation

No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance[.]

(emphasis added). I will discuss McCarran-Ferguson in more detail later, but for now I point out that 1) McCarran-Ferguson was passed as a direct response to limit the effects of South-Eastern Underwriters, 2) that decision ruled that the Commerce Clause applied to "the business of insurance," and 3) McCarran-Ferguson repeatedly uses the phrase "the business of insurance. Consequently, I maintain that Supreme Court decisions defining "the business of insurance" as used in McCarran-Ferguson are equally applicable to any definition of the term outside of McCarran-Ferguson. With that in mind...

Here's how the Supreme Court defined the term in SEC v. National Securities, Inc., 393 U.S. 453, 460 (1969):

The relationship between insurer and insured, the type of policy which could be issued, its reliability, interpretation, and enforcement -- these were the core of the "business of insurance." Undoubtedly, other activities of insurance companies relate so closely to their status as reliable insurers that they too must be placed in the same class. But whatever the exact scope of the statutory term, it is clear where the focus was -- it was on the relationship between the insurance company and the policyholder. Statutes aimed at protecting or regulating this relationship, directly or indirectly, are laws regulating the "business of insurance."

(emphasis added). I don't really see how the individual mandate fits into this definition of "the business of insurance." By the way, Virginia also made this claim (see footnote 6 of Judge Hudson's ruling), but Judge Hudson did not address this issue. It seems that this definition of "the business of insurance" has not changed. As the Supremes stated in the 1993 case of Dept. of Treasury v. Fabe, 508 U.S. 491 (1993),

This Court has had occasion to construe this phrase only once. On that occasion, it observed: Statutes aimed at protecting or regulating this relationship [between insurer and insured], directly or indirectly, are laws regulating the "business of insurance," within the meaning of the phrase.

508 U.S. at 501. Again, I do not see that the individual mandate falls within that category. The individual mandate seeks to create such a relationship. It does not affect that relationship once it has been created. A strong claim can be made that the consumer protection provisions of the PPACA certainly concern the relationship between the insurer and the insured, but in my opinion the individual mandate does not.

Back to the individual mandate...If the individual mandate is viewed alone, in my opinion it is not related to "the business of insurance" and thus does not come with the Commerce Clause. As a result, the individual mandate, standing alone, is not constitutional. So, the federal government is making a big mistake if it is arguing that standing alone the individual mandate is constitutional.

However, the individual mandate is part of an overall statutory scheme, and that means that even though it is not itself constitutional under the Commerce Clause, it could still be upheld via the Necessary and Proper Clause. Once again I say I feel the argument has to be properly structured to be based on regulating the interstate health care market. As I said, the consumer protection provisions of the PPACA are related to the "business of insurance," meaning the Commerce Clause is applicable to them. That means the Necessary and Proper Clause might be applicable to the individual mandate if the regulatory objective of the PPACA is regulation of the health insurance market. However, there is still the possibility, as discussed above, that the Supreme Court could rule that there is no interstate health insurance market, and then the Necessary and Proper Clause would not save the individual mandate. One could argue that it is unlikely the Supreme Court would make such a ruling, and that might be true, but why take the chance? Why give the Supreme Court a possible basis for making that ruling? By arguing that the purpose of the PPACA is regulation of the interstate health care market, the Necessary and Proper Clause would, in my view, unquestionably be applicable to the individual mandate. Otherwise, there is the possibility that "the business of insurance" could be used to declare the individual mandate unconstitutional.

D. McCarran-Ferguson

Now this is where things really get confusing.

Here's how McCarran-Ferguson works. If Congress passes a law that specifically relates to "the business of insurance," that law controls over any and all state laws, period. If, however, the federal law is not specifically related to "the business of insurance," AND that law invalidates, impairs, or supersedes any law enacted by any State for the purpose of regulating "the business of insurance," the federal law cannot be enforced. South-Eastern Underwriters placed a limit on Congress's Commerce Clause power by saying that it applies to "the business of insurance," and McCarran-Ferguson places a further limit on that Commerce Clause power.

Now let's look at the individual mandate again. As discussed above, I do not think the individual mandate has anything to do with "the business of insurance." As such, it cannot automatically control under McCarran-Ferguson. However, it could still be enforceable under McCarran-Ferguson if it does not invalidate, impair, or supercede any State law which regulates "the business of insurance." What this means is that if a State has a law that deals with the business of insurance AND is in conflict with individual mandate, the individual mandate cannot be enforced.

Virginia may have just such a law. It is called the Health Care Freedom Act, and here is what it says:

No law shall restrict a person's natural right and power of contract to secure the blessings of liberty to choose private health care systems or private plans. No law shall interfere with the right of a person or entity to pay for lawful medical services to preserve life or health, nor shall any law impose a penalty, tax, fee, or fine, of any type, to decline or to contract for health care coverage or to participate in any particular health care system or plan, except as required by a court where an individual or entity is a named party in a judicial dispute. Nothing herein shall be construed to expand, limit or otherwise modify any determination of law regarding what constitutes lawful medical services within the Commonwealth.

(emphasis added). This law clearly conflicts with the individual mandate, and clearly the individual mandate would invalidate, impair, or supercede this State law. But the analysis does not stop there. The question now becomes whether the Health Care Freedom Act regulates "the business of insurance." If I am correct that the individual mandate does not regulate "the business of insurance" because it concerns matters that exist before there is a relationship between an insured and insurer, then it seems to me that the same could be said about the Health Care Freedom Act. If that is the case, McCarran-Ferguson would have no impact on whether the individual mandate is enforceable.

Ain't law just a barrel of laughs?

But wait...there's even more potential chaos.

The Health Care Freedom Act became law in Virginia before the PPACA became law. What if other States begin passing laws now that would be invalidated, impaired, or superceded by the individual mandate? Does a State law have to be in existence before the federal law is enacted in order for McCarran-Ferguson to apply? I don't know the answer, but if the answer is "no," then all some other States have to do to stop the individual mandate is to now pass a law that does regulate "the business of insurance" that directly conflicts with the individual mandate. That could certainly muck up everything.

But wait...I'm not done yet.

Let's assume that, for whatever reason, the individual mandate is not enforceable because of McCarran-Ferguson. To me what that means is that the individual mandate cannot be constitutional under the Commerce Clause because 1) McCarran-Ferguson is a valid limitation of the Commerce Clause power, and 2) the individual mandate is subject to that limitation. However, the Necessary and Proper Clause is still out there. Recall that under that clause, a law does not itself have to be constitutional under the Commerce Clause. And that raises a very interesting question. McCarran-Ferguson is a limit on the Commerce Clause, but is it also a limit on the Necessary and Proper Clause? If the individual mandate does not comply with McCarran-Ferguson, does that mean it cannot be enforced pursuant to the Necessary and Proper Clause? My opinion is "no" because

South-Eastern Underwriters dealt only with the Commerce Clause.
McCarran-Ferguson was a direct response to South-Eastern Underwriters.
McCarran-Ferguson is on its face an express limit on the Commerce Clause.
McCarran-Ferguson does not on its face apply to the Necessary and Proper Clause, and
Generally speaking, Constitutional provisions control over statutory ones.

Stated differently, since Congress did not in McCarran-Ferguson expressly limit its power under the Necessary and Proper Clause, I think the individual mandate is still enforceable under the Necessary and Proper clause even if the individual mandate is unenforceable under McCarran-Ferguson.

To be honest, I have not done any research on this theory, and I am not going to before publishing this post. For now I will simply say that this theory could seriously complicate this entire matter. It raises all kinds of questions about how any ruling should be structured and the possible long term effects of any ruling.

E. A little more on the Health Care Freedom Act

Virginia made the Health Care Freedom Act a main part of its case, claiming that because of that Act, the PPACA violated the 10th Amendment. As noted way back in section III of the "first post," Judge Hudson made no ruling on that issue. That means that a 10th Amendment issue could still be argued and determined by the Supreme Court. I have not mustered the desire or energy to look into that, and I likely won't any time soon. I just want to point out that such an issue presents another lengthy and detailed set of matters that could make this whole case even more complicated.

F. Conclusion as to the role of insurance

I think the best shot to have the individual mandate declared unconstitutional is to focus on the intrastate aspects of health insurance and the fact that the federal government is basing its arguments on what its claims to be an interstate health insurance market. Even so, this approach will require some modifications/alterations to existing precedent concerning insurance and the Commerce Clause and how McCarran-Ferguson has been interpreted and applied.

This approach could help in making a decision invalidating the individual mandate narrow. By focusing on what might be aspects unique to health insurance, the Supreme Court might be able to modify existing Commerce Clause precedent in a way that does not unravel much of that precedent AND helps to further define the scope of the Commerce Clause. By dealing with the meaning of "the business of insurance," the Supreme Court could further narrow its decision so that it does not have much effect beyond insurance. At least that's my story and I'm sticking to it.

XII. Conclusion

Still working on this...

Will update as soon as I have it finished.

Outline for the "second post."

2011-01-24T14:32:00.002-06:00

Sometime later today I will finally publish my "second post" on the Courts and the individual mandate. I have to make sure that all the little details--like all my internal references to other parts of the post are accurate, links are provided, etc.--have been done, AND I have to finish the conclusion.

In the meantime, here is the outline for the post.

Still working on second "Courts and the individual mandate" post

2011-01-13T18:46:00.001-06:00

I have changed my approach and analysis several times in working on the "second post." Part of what I have been working on is an approach under which the individual mandate could be held unconstitutional. I will likely still include that, but I have just concluded that under current law, the individual mandate is constitutional via the Necessary and Proper Clause. In support of my current opinion, I will discuss in detail the case of Gonzales v. Raich. Here's a summary: if the Supreme Court upheld as constitutional the law at issue in Gonzales, there is no way the individual mandate is unconstitutional.

If the Supreme Court is to strike down the individual mandate, the Court will have to make changes in the law as it currently exists. The Court is absolutely free to do that, but the task is going to be even more difficult than I first thought.

It is also my opinion that Judge Hudson's rulings in the Virginia case are wrong under the current law. In short, 1) his rulings are based on the Commerce Clause when the issues really depend on the Necessary and Proper Clause, and 2) he misses the mark in analyzing the Necessary and Proper Clause.

All shall be explained--or at I least I will try to do so--in the "second post." Stay tuned...

UPDATE (1-14-2011): Well, I have modified my opinion slightly. I still think that based on current law, the individual mandate is constitutional. However, my opinion is based on arguing that the PPACA has as its overall objective the regulation health care, not health insurance. Also, ruling against the individual mandate might not be as difficult as I originally stated in this post.

First post on the Courts and the individual mandate

2011-01-10T16:40:00.001-06:00

I. Overview

As I said at the end of my earlier post, what happens in the Courts now that one U.S. District Judge has ruled the individual mandate to be unconstitutional is a complicated matter. I predict that this case will eventually be heard by the Supreme Court, but not until this case and a few others have been ruled upon in the Courts of Appeals. As to the ultimate outcome, I am not sure. This issue of the constitutionality of the individual mandate might look simple on the surface, but it is in fact very complicated. Sorting through this matter requires an examination of

the nature of the proceeding before the Judge;
the Judge's ruling (what it did and did not do);
typical appellate procedure and practice, including how the Supreme Court operates; and
factors that could influence the Supreme Court's decision.

I am going to discuss some technical aspects of the wonderful world o' law, and my objective is to discuss these matters in a way that laymen can understand. This is not intended to be close to a comprehensive, detailed legal analysis. Some might think that the sheer length of this post and the next belies the previous statement, but believe me, this discussion in relative terms is neither lengthy nor detailed. Also, I will not try to stake out a position and defend it. As mentioned above, I do not know how the Supreme Court might rule on this issue. I will attempt to explain why the issue is much more complicated that it at first seems.

I will only address the individual mandate in relation to the Constitution's Commerce Clause and Necessary and Proper Clause. I am not going to address any issues regarding the 10th Amendment or whether the penalty under the individual mandate is a tax (and the Judge Hudson in Virginia ruled it was not a tax).

It might seem that I am arguing for upholding the individual mandate or that I am in favor of the individual mandate and the PPACA. However, I am already on record as saying that I feel the PPACA does not really reform anything because our health care system is still based on and entrenched in insurance and that I don't care for the individual mandate. Nevertheless, it seems to me that the law as it exists now is mostly in favor of upholding the individual mandate. However, that law could change, and I will explain how that might happen.

Overall, I think the question of whether the individual mandate is constitutional comes down to a matter of drawing a line regarding Congressional power under the Commerce Clause and the Necessary and Proper Clause of the Constitution. Regardless of whether the individual mandate is upheld or struck down, there is a need to more clearly define how far that power can go.

II. The nature of the proceeding

Judge Hudson's full ruling (in the form of a "memorandum opinion") can found here. What follows in II and III is a "Readers Digest" version of what the Judge's ruling does and does not do.

The case was filed by the Commonwealth of Virginia as plaintiff and Kathleen Sebelius, Secretary of the Department of Health and Human Services, as Defendant. Virginia was seeking declaratory and injunctive relief--as in a declaration that the individual mandate is unconstitutional under the Commerce Clause and the 10th Amendment and an order that would prohibit the enforcement of the individual mandate.

The specific proceeding on which Judge Hudson ruled was a "summary judgment" proceeding. In simple terms, a summary judgment decides the case without a trial. If summary judgment is granted, the case is essentially finished in the trial court. The order granting summary judgment is in technical terms a "final judgment" and then the case can be appealed. In our legal system, the general rule is that any decision by a trial court cannot be appealed until there is a final judgment in the trial court. In this this case, both sides filed motions for summary judgment. Judge Hudson denied the federal government's motion and granted Virginia's motion for summary judgment.

As a result, the case will soon become a "final judgment" and can then be appealed to the 4th Cirsuit Court of Appeals. More on that in the section on typical appellate procedure and practice.

III. The Judge's ruling

Judge Hudson ruled that the individual mandate was unconstitutional because

Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market. In doing so, enactment of the [individual mandate] exceeds the Commerce Clause powers vested in Congress under Article I [of the Constitution.]

(Hudson opinion, p. 24). Later in the opinion he said the following:

A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce or role in a global regulatory scheme.

(Hudson opinion, p. 37). To my knowledge, Judge Hudson is correct on this point, but, as I will try to explain in the next post, that does not necessarily mean there is no precedent which supports the constitutionality of the individual mandate. Indeed, I think there is some strong precedent in favor of the individual mandate, and Judge Hudson's opinion does a very poor job in addressing that precedent. Furthermore, to my knowledge, there is also no precedent that directly says what the individual mandate seeks to do is outside of the Commerce Clause power. As I will explain in the next post, that makes this question one of "first impression," and that is just one factor that makes this issue complicated.

Judge Hudson's ruling also contained what could be a central part of the appeal of this case and any other cases related to the PPACA. He stated that "If a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution." (Hudson opinion, p. 19). The potential significance of this statement will be discussed in VI.C.5 in the next post. For now I will say that this is relevant to some of my previous analysis:

At first blush it might seem that, given the current composition of the Supremes, the chances would be very good that the individual mandate would be declared unconstitutional. However, such a ruling could have effects that go way beyond health care reform. Such a ruling could set the stage for dismantling all kinds of laws. Now I know that some people think that is a good thing, but I warn those folks to be careful what you ask for. That dismantling could become one huge, completely out of control metaphorical snowball. Trying to control the dismantling will be next to impossible.

In any event the individual mandate was the only portion of the PPACA Judge Hudson declared unconstitutional. His ruling was made pursuant to the Commerce Clause only and did not address the 10th Amendment. Also, he denied Virginia's request for injunctive relief. What this means is that implementation and enforcement of the of the individual mandate can proceed. That might seem odd, but the Judge's reasoning was that there was no need to grant an injunction against the individual mandate because it would not go into effect until 2013 at the earliest. As Judge Hudson put it, "Historically, federal district courts have been reluctant to invoke the extraordinary remedy of injunctive relief against federal officers where a declaratory judgment is adequate...In this Court's view, the award of declaratory judgment is sufficient to stay the hand of the Executive Branch pending appellate review." (Hudson opinion, p. 41).

It should also be noted that although Virginia sought to have the individual mandate declared unconstitutional, Virginia also requested that, in the event it got such a declaration, the Court strike down the entire PPACA. This relates to the concept of "severability." Typically, statutory schemes have a "severability clause" which states that if any one portion of the statutory scheme is found invalid the rest of the law will still be valid. Without such a clause, if one portion of the statutory scheme is found invalid, the law could be subject to invalidation in its entirety. For some unknown reason, whoever wrote the PPACA did not bother to put in a severability clause. This was a boneheaded mistake of semi-epic proportions. Even so, Judge Hudson ruled that the individual mandate was severable from the rest of the PPACA. In other words, he did not declare the entire PPACA invalid. (See Hudson opinion, pp. 38-40). I am not going to address severability any further.

IV. Appellate procedure and how it could affect this issue

This is how the process usually works:

A case reaches "final judgment" in the District Court, meaning that all issues needed to dispose of the case have been determined. This does not necessarily mean that all questions and issues have been resolved. For instance, a given case could involve some factual issues on which each side have completely different positions, such as the plaintiff says that a certain event happened at night while the defendant insists that event happened during the day. Let's assume that the plaintiff is correct and would usually win the case on the basis of that fact. Assume also that there exists a legal technicality which could end up dismissing the case. The District Court would likely dismiss the case based on that technicality, AND the District Court would not have to make any ruling on the key factual dispute. In other words, the District Court would decide only the issue it needed to dispose of the case, and the case would have reached "final judgment" even though many issues were never ruled upon. Judge Hudson's ruling is another example. Even though he did not rule on the 10 Amendment claims, his ruling on the Commerce Clause was enough to dispose of the case.
As a general rule, only "final judgments" can be appealed. There are exceptions, but none of them apply in this case, so I am not going to discuss those. For purposes of this post, it suffices to say that the granting of "summary judgment" for Virginia disposed of all issues needed to make this case a "final judgment." This is true even though Judge Hudson did not rule on all the issues (such as the 10th Amendment).
Once a final judgment is entered at the District Court, the loser of the case can appeal the case to the Court of Appeals.
In this case, the 4th Circuit Court of Appeals will hear the appeal.
Once the Court of Appeals makes a decision and enters a judgment, then the losing party can seek an appeal in the Supreme Court.
The losing party in the Court of Appeals generally seeks review by the Supreme Court by filing a "petition for certiorari," or "cert" for short. [28 U.S.C. § 1254 (1)].
It is important to note that the Supreme Court has discretion over whether it will consider any given case. The Courts of Appeals have no choice--they have to consider every case that is appealed from the District Courts. However, the Supreme Court gets to decide whether of not it will hear any given case.

Apparently, Virginia--the winning party in this case--wants to try to skip the Court of Appeals and have this appeal go directly to the Supreme Court. Well, lots of luck on that. There are a few ways in which that can happen, but one does not apply to this case, one that might apply is almost impossible to obtain, and the other that might apply is even harder to obtain. Certain decisions required to be made by a three-judge panel in a District Court can be appealed directly to the Supreme Court. [28 U.S.C. § 1253]. There was no such panel or decision in this case, so § 1253 does not apply. Questions that are "certified" by the Court of Appeals can be decided by the Supreme Court without the need for a ruling from the Court of Appeals. [28 U.S.C. § 1254 (2)]. Here's how that provision reads:

Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods:
*******
(2) By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.

Note that it is still discretionary as to whether the Supreme Court accepts or answers the certified question. Note also that the Supreme Court has chosen to address a certified question only four times in almost 65 years. And the Supremes are not likely to make this case #5, but I will explain that in V.E below. Suffice it to say that the acceptance of certified questions is rare. The last way to skip the Court of Appeals is to file for an extraordinary writ pursuant to 28 U.S.C. § 1651, which says "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." However, Rule 20 of the Supreme Court Rules makes this option very, very difficult. Rule 20(1) says

Issuance by the Court of an extraordinary writ authorized by 28 U. S. C. §1651(a) is not a matter of right, but of discretion sparingly exercised. To justify the granting of any such writ, the petition must show that the writ will be in aid of the Court's appellate jurisdiction, that exceptional circumstances warrant the exercise of the Court's discretionary powers, and that adequate relief cannot be obtained in any other form or from any other court.

No one is going to be able to actually satisfy these requirements in this case, and even if they did, the Supreme Court still could refuse to hear the case. I will explain in V.E below why the Supremes would not be inclined to grant an extraordinary writ in this case.

So, the only way this case is going to get to the Supreme Court is via a petition for cert after the 4th Circuit Court of Appeals has reached a decision. According to Rule 10 of the Supreme Court Rules,

Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court's discretion, indicate the character of the reasons the Court considers:

(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's supervisory power;
*******
(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.

It is likely that all of these factors will be present--after some time has passed. Given that other District Courts have ruled the PPACA to be constitutional, there is a chance that there could be some conflicting decisions among the Courts of Appeals. Even if that does not happen, my guess is that the constitutionality of the individual mandate is an important question of federal law that should be settled by the Supreme Court. Thus, it is my belief that eventually the question of the constitutionality of the individual mandate will eventually find its way before the Supreme Court via a petition for writ of certiorari.

V. Factors that could influence the Supreme Court's decision and my thoughts on how this will play out

I should say "decisions" because the Supremes would first have to decide to take the case and then decide the actual case. Both decisions will be influenced by some common factors which are general to our judicial process. I will try to present those factors in a way that is relatively painless for those who have not studied and experienced such matters.

I am going to save discussion of factors specifically related to the Commerce Clause and Necessary and Proper Clause for section VI in the next post.

A. Precedent

First is the concept of "precedent." For those who think that courts should never make law, you are flat out wrong. Under our overall system, not only do courts make law, but such activity is necessary. That explanation is for another time, but for now you are just going to have to accept that courts make law. That law primarily takes the form of precedent, or earlier court decisions. Precedent is established not by the trial courts (which for this post means the U.S. District Courts) but by the appellate courts (the Courts of Appeals and the Supreme Court). Courts are supposed to follow precedent. In other words, if a District Court wants to decide a given question one way, but the Supreme Court has ruled on that same question in another way, the District Court must follow the Supreme Court's ruling. District Courts are also supposed to follow precedent from the Courts of Appeal, and the Courts of Appeal are supposed to follow Supreme Court precedent.

Precedent is what gives the judicial system stability and a level of certainty. Without either of those things, the whole system would be out of control and would be rampant with inconsistency, arbitariness, corruption, and injustice. I must say that the system already has all of those things, but the situation would be worse to an amazing degree without the goal of adhering to precedent.

Our judicial system is designed to change precedent when the need arises, BUT the system is also designed for change to generally occur gradually rather than suddenly. This helps to maintain stability. It also encourages careful thought and reasoning. It also helps to put a limit on "result-oriented" decisions. In other words, it puts a limit on judges' ability to decide what result they want in a given case and then manipulating (or ignoring) the law and facts to fit their preordained result.

B. Narrowness

Next is the idea of "narrowness." Recall that I predicted that any decision by the Supreme Court in this case could have effects that go way beyond this one case. That is a possibility in many cases. Appellate courts generally try to avoid such far-reaching effects by making their decisions "narrow."

One way of making a "narrow" decision relates to my explanation of "final judgment," namely that a "final judgment" occurs when "all issues needed to dispose of the case have been determined. This does not necessarily mean that all questions and issues have been resolved." I cited Judge Hudson's decision as an example. He could have ruled that the individual mandate violated the 10th Amendment of the Constitution, and he could have issued an injunction stopping enforcement of the individual mandate, but he didn't do any of that. Instead, he issued what is in effect a narrow ruling--only that the individual mandate is unconstitutional under the Commerce Clause.

Appellate courts do this to a greater degree than trial courts. Basically what appellate courts do is try to find the simplest and easiest way to decide a case. Often that means appellate courts look to resolve cases without addressing what others would consider to be important. A phrase used in many appellate decisions is "We do not reach that issue because we have decided the case on other grounds."

Another way to render a narrow decision is to structure it so that its effect is limited as much as possible to the specific case being decided. In other words, a court will take steps to try to make a decision not applicable beyond the facts of that case.

The effort to make decisions narrow might not seem to make sense. I am not going to try to explain all the reasons why the effort does make sense, for that would take way too long. I will, however, point out that from a logistical standpoint, narrow decisions are helpful to the judicial system. A narrow decision can aid an appellate court to use its time and resources more efficiently. This is particularly true for the U.S. Supreme Court. The Supreme Court takes only the most difficult and important cases. Each case requires a great deal of thought, research, and discussion. The narrower the decision coming up from the Court of Appeals, the more the Supreme Court can effectively devote its resources to fully examine and analyze the issues presented by that decision. That's a good thing.

Moreover, having the Supreme Court issue narrow rulings is also a good thing. The Supreme Court is the ultimate arbiter in our system on constitutional issues. Indeed, much of the Supreme Court's work involves interpreting and applying constitutional principles. These principles are at the very foundation of our system of government and society. Thus, any decisions involving them can have far-reaching effects AND have unintended consequences. Making decisions narrow reduces the possibility of such consequences. Also, narrow decisions from the Supreme Court aid in the stability I discussed in relation to the principle of precedent.

During most of my lifetime, I feel the Supreme Court has largely adhered to these principles of precedent and narrowness. More to the point, I think they will adhere to them in this particular matter of the individual mandate.

C. What the discussion so far means for this Virginia case and other PPACA cases

I think the Virginia case will be heard by the Supreme Court. However, I also think the Supreme Court is not going to hear the Virginia case anytime soon. Moreover, when that case reaches the Supremes, their decision is going to be narrow. Now for the explanation...

D. This case could be huge in terms of its effect.

As noted, Judge Hudson ruled that the individual mandate of the PPACA is unconstitutional because it has no foundation in the Commerce Clause AND Judge Hudson's ruling also partially involves the Necessary and Proper Clause of the Constitution. These two clauses have been bases for the expansion of Congressional (and thus federal) power. And now Judge Hudson's ruling is at the very least an attempt to limit such power. However, Judge Hudson's ruling could also become a basis for doing more than limiting Congressional and federal power. As I said in my lengthy health care post, a ruling that the individual mandate is unconstitutional "could set the stage for dismantling all kinds of laws." In other words, such a ruling could become the basis for attempts to get rid of all kinds of existing laws. On the other hand, a ruling that the individual mandate is constitutional could set the stage for even more expansion of Congressional and federal power. Both of these possibilities are not necessarily good. Stated differently, the stakes are potentially very high.

Given the potential stakes, the need for a very carefully crafted decision will also be very high. In other words, whatever the decision will be, it will need to be as narrow as possible.

E. The Virginia case is not going to get to the Supreme Court quickly.

I have already explained that 1) I think the Virginia case will get to the Supremes via a cert petition and 2) it is not going to get to the Supremes via any of the ways that skip the Court of Appeals. This means that at a minimum the Virginia case is going to have to be submitted to and decided by the 4th Circuit Court of Appeals before it goes to the Supreme Court. That is not likely to happen quickly.

Furthermore, even if that would happen quickly, it is unlikely that the Supreme Court would automatically take the Virginia case as soon as it possibly could. This is where narrowness starts to come into play. There are other cases involving the PPACA, and in some of those, District Courts have already ruled the PPACA to be constitutional. In my opinion, it is likely that the Supreme Court would want to wait to see how those cases are resolved in the Courts of Appeals before taking any case involving the PPACA. Why? Because that would present an opportunity for the issues to be narrowed before they get to the Supreme Court. Again, this process will not happen quickly.

There is another practical reason why the Supreme Court will likely be in no rush to take the Virginia case and the other PPACA cases, namely that the matter might get resolved or semi-resolved before it gets to the Supreme Court. While I still think the PPACA will not be repealed, that is a possibility--one made greater by what I described earlier as Obama's complete lack of backbone. Also, it is possible that the various Courts of Appeals that will hear these cases could all agree. I don't think that is likely, but it could happen, and if it did, the Supreme Court might decide to let those decisions stand.

The bottom line as to timing is that there are many legitimate, practical reasons why the Supreme Court would not want to get the PPACA cases quickly, and I don't see any compelling reason for the Supremes to feel otherwise.

And now the really fun stuff--the legal analysis of the individual mandate under the Commerce Clause and the Necessary and Proper Clause--will be in the next post.

The upcoming posts on health care and the courts

2011-01-08T14:34:00.001-06:00

On December 13, I published "Major health care update," which discussed the decision that day by a U.S. District Judge in Virginia that the individual mandate is unconstitutional. I really talked about the political possibilities in light of that ruling and did not discuss what might happen in the courts. All I said on that topic was "This is a bit of a complicated matter, and I will either address it in a subsequent post or add that discussion to this post. Stay tuned..."

I started working on that "subsequent post" the next day, and I still am not quite finished. It has been too long since I have done any work on big time Constitutional issues, and I had forgotten just how complicated they can be--and this one is complicated.

I was going to publish one long post, but I am splitting that into two because 1) even I thought the length of just one post was excessive, and 2) while I finish up the last sections I figured I needed to go ahead and post what I have finished.

The first post explains some technical aspects of the judicial system and how it works and how that could affect the issue of the individual mandate. Here's the outline for the first post (sorry for the lack of a proper format on the outline--I can't figure out how to get it done properly on Blogger) :

I. Overview
II. Nature of the proceeding
III. The Judge’s ruling
IV. Appellate procedure and how it could affect this issue
V. Factors that could influence the Supreme Court's decision and my thoughts on how this will play out
A. Precedent
B. Narrowness
C. What the discussion so far means for this Virginia case and other PPACA cases
D. This case could be huge in terms of its effect.
E. The Virginia case is not going to get to the Supreme Court quickly.

The second post gets into the specific legal analysis.

UPDATE on 11-16-2011: When I first published this post, I included an outline for the "second post." However, as noted here, I have changed my approach and opinion since I posted that outline. Consequently, I have deleted that outline for now.

In no way will these posts be a comprehensive legal analysis. I have not even read any of the judicial decisions upholding the PPACA and the individual mandate. I simply read the ruling in the Virginia case and did my research and analysis based on what it contains.

I warn you ahead of time that despite my efforts to the contrary, these posts are going to be tedious reading, especially for non-lawyers. Anyone who wants to claim that this issue is simple and straightforward is, in my opinion, wrong. This matter concerns important issues at the core of our system of government under the Constitution related to the power of Congress and how the Constitution is interpreted and applied. Any decision by the Supreme Court on this matter could have enormous long term effects that go way beyond health care, and simplistic views are a mistake.

Does anyone want to try to defend these Republican assholes?

2010-12-15T00:56:00.003-06:00

Think the title of this post is harsh or inappropriate? Well, watch this clip from the December 13, 2010, episode of the Daily Show.

The Daily Show With Jon Stewart

Mon - Thurs 11p / 10c

Lame-as-F@#k Congress

www.thedailyshow.com

Daily Show Full Episodes

Political Humor & Satire Blog</a>

The Daily Show on Facebook

So, does anybody want to try to defend these assholes?

Major health care update

2010-12-13T15:12:00.001-06:00

One Judge has declared the individual mandate unconstitutional.

Recall that in my somewhat lengthy post about The Republicans and Health Care I said "Now, back to the individual mandate. The Republicans claim that it is unconstitutional. They may be right." And now a U.S. District Judge in Virginia has ruled that the individual mandate is unconstitutional. Here's the report from the Washington Post (as of 1:48 PM CST):

In a 42-page opinion, Hudson said the provision of the law that requires most individuals to get insurance or pay a fine by 2014 is an unprecedented expansion of federal power that cannot be supported by Congress's power to regulate interstate trade.

"Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market," he wrote. "In doing so, enactment of the [individual mandate] exceeds the Commerce Clause powers vested in Congress under Article I [of the Constitution.]

Hudson is the first judge to rule that the individual mandate is unconstitutional. He said, however, that portions of the law that do not rest on the requirement that individuals obtain insurance are legal and can proceed. Hudson indicated there was no need for him to enjoin the law and halt its implementation, since the mandate does not go into effect until 2014.

So now what are the Republicans in Congress going to do?

I am going to stick to my previous prediction that the Republicans will not seek to repeal the PPACA through legislation but will instead pursue the judicial route. In addition to what I said in the last section of my lengthy post, I will add something I told someone yesterday--with a little addition. I said "Moreover, there is still a chance that the mandate will be declared unconstitutional. That is the avenue the Republicans will push the hardest because it does not entail Congress having to take any [direct] action." Now the Republicans can say "See? It's not us that shot down health care. The thing was unconstitutional." This has several distinct advantages for the GOP. 1) No one can blame them for repealing the PPACA. 2) They really don't have to spend time and energy trying for a repeal. 3) Instead, they can use their time and energy to try to pressure the Dems --and most especially Obama--to come up with something new. And given Obama's past history (especially the tax deal), I'd say that strategy has a high chance of success.

That strategy is certainly what I would pursue if I was a Republican, particularly since Judge Hudson 1) declared only the mandate unconstitutional and 2) did not enjoin enforcement of any of the rest of the PPACA.

The problem for the Republicans in terms of repeal is that the only reflexively objectionable portion of the PPACA is the individual mandate (primarily because of the penalty involved). It's kind of hard to argue that the consumer protections and the health insurance exchanges are really bad. In other words, trying to repeal the rest of the PPACA is going to be an uphill climb. Because of that and because of Obama's lack of backbone in dealing with the Republicans, the GOP would be better served by continuing to apply indirect political pressure to get changes in the PPACA.

So now what are the Democrats going to do?

Tough to say. The problem for them is that the non-mandate portions of the PPACA--such as the consumer protections and exchanges--constituted the reform provisions (to the extent there was reform), but the individual mandate was the thing that could have made the whole system eventually succeed. In order for the exchanges to eventually do what they are designed to do, insurers have to offer good and fair policies via the exchanges, and wth the individual mandate the insurance companies would have incentive to do that. Without the individual mandate, it could very well make more business sense for the insurance companies to stay out of the exchanges (and under the PPACA they have that option). Also, the individual mandate was the trade off for all the consumer protection provisions in the PPACA--and those apply to all insurance policies. Thus, the insurance companies could start trying to weaken those consumer protections.

Thus, I am guessing that the Dems will try to keep those consumer protections in place. What I'm not sure about is whether Obama is going to take up that fight. More on that in a bit...

Some people might think that this opens the door for a revisit of the public option. Indeed, I thought previously that a repeal of the PPACA could present such a possibility. Now I am not so sure. Republicans hate the public option more than they do the individual mandate, so any attempt to put the public option back on the table is going to be extremely difficult. Also, Obama has pretty much abandoned the idea of a public option. Not only did he bail on it during the legislative process, he absolutely threw under the bus anyone who wants to support it now or in the future. He did that during his hissy fit press conference the day after the tax deal. In defending his deal with the GOP on tax cuts, he said the following:

So this notion that somehow we are willing to compromise too much reminds me of the debate that we had during health care. This is the public option debate all over again. So I pass a signature piece of legislation where we finally get health care for all Americans, something that Democrats had been fighting for for a hundred years, but because there was a provision in there that they didn’t get that would have affected maybe a couple of million people, even though we got health insurance for 30 million people and the potential for lower premiums for 100 million people, that somehow that was a sign of weakness and compromise.

In other words, "I got insurance for everyone and lower premiums, so anyone who wanted the public option should kiss my ass and be thankful for the chance." Obama has ensured that politically speaking he cannot ever advocate a public option again, AND he has shown that he will scold any Democrat who ever does so. Without Presidential backing there is absolutely no way the public option ever has a chance of becoming law.

The way that Obama basically gave into the Republicans in the tax deal (and he did--a topic I will discuss in another post) and the way he went after members of his own party in that post-tax deal press conference indicate to me that he is not going to support Congressional Dems in anything they want to do that meets Republican resistance. So, I am not at all sure that Obama will fight to keep the consumer protection provisions of the PPACA.

Given all of the above, I am not sure what the Democrats are going to do--other than fight the individual mandate battle in the Courts.

So now what are the Courts going to do?

This is a bit of a complicated matter, and I will either address it in a subsequent post or add that discussion to this post. Stay tuned...

Obama's lack of change I can believe in--an overview

2010-12-09T12:25:00.000-06:00

During the 2008 campaign I had many Republicans ask me whether I agreed with all of Obama's policy positions. I said "no," which prompted questions about why I was voting for him. Well, the #1 reason was "He's not crazy John McCain and Sarah Palin is not his running mate." Then I went on to explain that I felt that Obama's message of "Change" was not primarily about policy but process. What I mean by that is a change in the process of how things operate in Washington--a change from blind partisanship, rancor, obscurity in government, a lack of substance, etc. I would then tell people that if Obama truly made that "change" a priority, I would support him, but if he did not make a significant effort in that regard, I would not support him. I also said that I did not know whether he would actually work for such "change."

Well, as far as I can tell, he has utterly failed to work for the change I can believe in. Now I know what some of you Democrats are thinking..."How could Obama do anything with the asshole Republicans behaving like they have." Let me be clear. The Republicans have been assholes, but that does not get Obama off the hook, and here's why. The Republicans did not force Obama to operate his administration in much the same way that George W. Bush operated his. The Republicans did not force Obama to continue some of the same policies as the Bush administration. The Republicans did not force Obama to make the amazingly stupid tactical and strategic decisions he has made--and the big one is pursuing health reform when he did. The Republicans did not force Obama to choose to keep talking about about compromise and "reaching out" when the Republicans blatantly showed time and again that they were not going to compromise or engage in actual bipartisanship. The Republicans did not force Obama to show such a lack of resolve and courage to stand up and fight.

In subsequent posts I am going to discuss all of this, and I will start with how Obama has continued what Bush started.

A bit of a diversion from bashing Republicans

2010-12-08T15:53:00.000-06:00

For the last week or so, I have been too busy to finish up my next couple of posts explaining my predictions as to what the Republicans will do for the next two years, and just as I was about to get back to that, the deal between the GOP and Obama over the Bush tax cuts came down.

In light of that, I have decided it is time to post some things that tear into Obama.

Here's my take in a nutshell: Obama has made one strategic or tactical dumbass blunder after another, and he has absolutely no backbone. He needs to grow a pair, and it ain't going to happen.

I have held this view for quite a while, but I became convinced of it because of the tax cut deal. I am not necessarily going to argue that extending all the Bush tax cuts is right or wrong. Instead, I am going to focus on what this deal and all the other mistakes and lack of action by Obama says about him as President.

While I am working on my own rant, check out this assessment from Keith Olbermann. I agree with much of what he says, in particular his assessment of the Obama administration and his emotion regarding that.

Visit msnbc.com for breaking news, world news, and news about the economy

The Republicans and health care

2010-11-23T17:51:00.000-06:00

I. Overview

The recent health care reform law provides an excellent means by which to explain many of my predictions. Keep in mind that this post is not about whether the health reform law is good or bad--even though I am going to voice my displeasure over it. The point here is to examine the law in the context of what the Republicans are going to do about the law. To that end I will be discussing what the new law contains and also what was in the primary proposal from the Republicans, which is called the Patients' Choice Act.

I need to explain some labels. The new law is the Patient Protection and Affordable Care Act, or PPACA for short. To identify this law, I will use the following terms: PPACA, the "current law," the "new law," or the "health reform law." You can see the entire PPACA here. I will refer to the Patients' Choice Act by its full name, "PCA," the "Republican plan," or the "Republican proposal." You can see the entire PCA here. When I write about legislation or other specific laws, I usually include specific citations thereto. I have not done that with this post when referring to the PPACA and PCA. I might go back and do that, but working on this post gave me such a severe case of tired head that I got lazy in that regard.

I will repeat what I wrote in my previous post, namely that I think the health care reform legislation did not reform anything. In the early stages of the "reform" process I had a post discussing my displeasure with what was being proposed, which ended up being the basic framework for what was eventually signed into law. My basic complaint is that the "reform" largely left the status quo in place. For you doubters, realize this: before "reform" our health care system was based on and controlled by insurance, and after "reform" our health care system is still based on and controlled by insurance. Under the current law, every person will be required to have health insurance (or face a penalty), and thus the means of delivering health care will become even more entrenched in and controlled by the insurance industry. What the current law does is change access to and delivery of insurance, not the actual health care. The current law also does not address in a direct and/or meaningful way the cost of the actual health care. The current law does not come close to reform of the health care system. And as I said in September 2009, "as long as insurance is the dominating and determinative factor in the delivery of health care, costs will never go down."

All that being said, the Republicans are not going to repeal the health care reform law, and as I stated in my previous post, here are the reasons for my opinion:

The insurance industry got a lot of what it wanted.
If the law is repealed, the insurance companies would lose favorable gains and risk losing much more.
The Republicans are not going to subject their close friends the insurance companies to such loss and risk.
The current law already contains Republican ideas.
The Republicans don’t have anything better to offer.

II. The insurance industry got a lot of what it wanted.

In my opinion, the fact that the "reform" keeps the whole system insurance-based and requires everyone to have insurance keeps the insurance companies happy, and that makes the Republicans happy. Insurance is BIG business, and Republicans love big business.

There are several reasons the insurance industry should be happy. As mentioned, under the PPACA, every person will be required to have health insurance. That means more--to the tune of millions more--people will be paying for health insurance. The Rand Corporation conducted an extensive analysis of the health care bill and opined that the law would reduce the number of uninsured persons by 25 million by 2019. The Congressional Budget Office in late November 2009 completed an analysis of how the law would affect the cost of insurance premiums. The CBO estimates the number of additional insureds to be approximately 50% of 53 million, but I can't tell by what year the CBO thinks that will happen. It appears to be 2016, but I am not sure. In any event, estimates are that essentially 25 million more people would be purchasing insurance because of the new law, and that could be a big benefit to the insurance companies. Moreover, the CBO analysis mentioned above projects that premiums will actually increase between now and 2016 because of the new law. That increase will be higher for those purchasing individually as opposed to those in group plans. I am not saying that is a good thing for consumers. I am saying that the insurance companies should be happy about it because they will not be losing any money over the next few years (even though the amount they will be paying out will necessarily increase over current levels because more people with insurance likely means more people getting health care for which the insurance companies will pay).

The insurance companies should also be happy because there is no "public option." In other words, the federal government is not going into the health insurance business other than the expansion of the already existing Medicare/Medicaid program. In place of the public option "health insurance exchanges" will be established in each state. There will be one exchange for individuals who are not covered through an employer and another exchange for small businesses. I will explain how exchanges are supposed to work later. The PPACA sets out some standards for Exchange policies, and a federal agency will provide additional requirements based on those statutory standards. In other words, a federal agency will ultimately determine what constitutes a "qualified plan" that can be a part of an exchange. The operation of the exchanges will be left to the individual state governments. However, the insurance policies available through the exchanges will be private insurance from the insurance companies. I will also note that under the PPACA, some people will receive government subsidies to help pay for health insurance, but those subsidies do not reduce the premiums, and thus the amount paid to insurance companies.

Under the new law, there will be more government regulation of health insurance. The typical reaction by many is that "regulation is bad," and while I'm sure the insurance industry would rather not have any regulation, here's why I think the regulation which will be in place is not going to be a bad deal for the insurance industry. One thing that big business does not like is instability and unpredictability. If there is stability and predictability, businesses can make longer term plans and strategies, and that's generally a good thing. What the current health care law should do in spite of establishing increased regulation is provide some rules and requirements that stay in place and thus provide some stability and predictability. That combined with the fact that the whole system is still based on and controlled by insurance could benefit the insurance industry. I will discuss this more in the context of a possible repeal of the law. In the meantime, let me sum up this point as follows: regardless of what the regulation turns out to be, people are still going to be required to have private insurance and there will be no public option, and the insurance industry will be willing to work with (and/or around) regulation as long as those elements are in place.

If that explanation doesn't work for you, here's another one. It could have been a lot worse for the insurance companies. A public option would have established direct competition for private insurance, and a public option could have had a competitive advantage (at least in the short term). This was the major thing the insurance companies wanted eliminated from health care reform, and that's exactly what they got. They also got a mandate that everyone has to have health insurance. According to the CBO, they also got a system that actually will produce slightly higher premiums over the next few years, and they got government subsidies that will ensure that the full price of premiums will be paid to them. So the insurance companies got a system that is still based on their product, an increased market (because of the mandate), and some possible stability and predictability.

The bottom line is that the insurance industry came out pretty good under the new law. The insurance companies are going to benefit directly from the "reform," and that's why the Republicans are not going to repeal it.

But what do I know? I'm only a smart-ass lawyer. So how about the opinion of a former insurance insider? Wendell Potter spent a lot of time working for big insurance companies. He headed up communications for Humana, Inc., and then he went to CIGNA, where he eventually became head of corporate communications and the company's chief corporate spokesman. On the November 17, 2010, edition of "Countdown," he said this:

The Tea Party folks may think that Congress might repeal this legislation, but there ain't a chance because what the insurers like about this is the requirement that we all have to buy their products, and there's no public option to funnel any of that money away from them. They‘ll be getting new revenue that will be converted into profits for their shareholders.

Moreover, repeal could end up not benefiting the insurance companies, as explained next.

III. The insurance companies would lose favorable gains and risk losing much more, and the Republicans don't want to do that.

Repeal would mean that the insurance companies would lose a guaranteed significantly larger market (because of the mandate), a guarantee that premiums will be fully paid (through the subsidies), and a government-approved (and thus unchallengeable) system that keeps insurance as the controlling factor. Does anyone think the insurance industry wants to throw all that away?

Furthermore, repealing the PPACA would present future uncertainty for the insurance companies. There's a chance that the GOP loses power in the 2012 election, and then the Dems would be completely unrestrained in terms of coming up with a package that was detrimental to the insurance companies. Right now they know what they are dealing with for at least the next five years--a law that requires every person to have health insurance, a law which will make sure that all that insurance is paid for, and a basic set of rules on what the insurance companies can and cannot do. Repeal could open the door for a public option or true reform of the health care system that takes away power and control from the insurance industry. How is that risk worth it given what the current law gives to the insurance industry?

Also, the Republicans are not going to put the insurance industry in a position of potentially losing gains and possibly getting laws that are anti-insurance. As I stated earlier, insurance is BIG business, and Republicans are so tied to big business that they are not going to do anything to threaten big business in general and the insurance industry in particular. I'm not even going to bother to explain this point further. Anyone who thinks I am wrong can feel free to offer some proof.

IV. The current law already contains Republican ideas.

Some of the main features of the PPACA are ideas put forth originally by Republicans, "conservatives," and at least one right wing think-tank.

For instance, the "individual mandate" that everyone be required to have health insurance came from Republicans and that damn bleeding-heart commie organization known as the Heritage Foundation. Here's an excerpt from a March 23, 2010, Miami Herald article by John Dorschner:

"The truth is this (the individual mandate) is a Republican idea," said Linda Quick, president of the South Florida Hospital and Healthcare Association. She said she first heard the concept of the "individual mandate" in a Miami speech in the early 1990s by Sen. John McCain, a conservative Republican from Arizona, to counter the "Hillarycare" the Clintons were proposing.

McCain did not embrace the concept during his 2008 election campaign, but other leading Republicans did, including Tommy Thompson, secretary of Health and Human Services under President George W. Bush.

Seeking to deradicalize the idea during a symposium in Orlando in September 2008, Thompson said, "Just like people are required to have car insurance, they could be required to have health insurance."

Among the other Republicans who had embraced the idea was Mitt Romney, who as governor of Massachusetts crafted a huge reform by requiring almost all citizens to have coverage.

The Heritage Foundation made an individual mandate a key component of it's health care proposal in 1992, as shown in this document. Moreover, the Heritage Foundation's 1992 proposal supported a system based on the system used by federal employees, which is essentially an insurance exchange.

In fact, in May of 2009, Republicans introduced a bill called "The Patients' Choice Act" which, as described in this article, provides for health insurance exchanges to be set up in the states--you know, like the current law. The Republican bill also called for subsidies for low income persons to pay for health insurance--as does the current law.

The Republican plan did not include an express individual mandate, as in 2009 Republicans decided their own idea was unconstitutional and that the government should not force people to buy insurance.

For a side-by-side comparison of the current law and the Republican proposal, go here. [NOTE: If you go to that link, here are some instructions. In the "Choose one or more proposals" box, click on "Final Health Reform Law" and "Senators Tom Coburn and Richrad Burr, etc." In the box below that, click on "Select All." Then click on the "Generate Comparison" button that appears.] Also, read this article about the Republican plan. I am going to discuss the Republican plan in more detail later. For now I simply want to point out that what is now current law that Republicans so vehemently opposed contains elements that originated with Republicans and were advocated by Republicans in 2009. You may be wondering why this matters. Well, it matters because now that the Republicans have some power, they have to do something, and if the current health care law gets repealed, they are going to have to come up with something in its place. And given that some of the core elements of the current law came from Republicans, I'm wondering whether they can come up with something really different from the current law.

V. The Republicans don't have anything different or better to offer.

A. The individual mandate

As shown above, Republican ideas are already in the current law, and that is one indication that Republicans have nothing different to offer regarding health care reform. Other indications are found in the Republicans' own "Patients' Choice Act." That bill warrants further analysis because it would likely be what the Republicans would put forth as a replacement for the current law.

The focus of the Republicans' effort to repeal--or otherwise get rid of--the current law is the individual mandate. I need to say at this point that I really do not like the individual mandate. My dislike is mostly due to my personality, in that I don't want anyone telling me what I have to do. However, for reasons I will attempt to explain, if insurance is to be the foundation of a health care system, having a mandate that everyone have insurance really is key to trying to manage the cost of the insurance and provide coverage to everyone. Of course, the fact that I want to change our whole system so that it is not based on and controlled by insurance is another reason why I don't like the individual mandate. That being said, I am not in this post trying to make the argument for what I want. Instead what I am doing is comparing the law we now have to what the Republicans proposed (and what they are likely to propose again if the current law is repealed or otherwise disposed of).

Now, back to the individual mandate. The Republicans claim that it is unconstitutional. They may be right. I am not going to go into the legal analysis here. Instead, I will make two other arguments. First, no one better put any bets down on what the Supreme Court might do on this issue. At first blush it might seem that, given the current composition of the Supremes, the chances would be very good that the individual mandate would be declared unconstitutional. However, such a ruling could have effects that go way beyond health care reform. Such a ruling could set the stage for dismantling all kinds of laws. Now I know that some people think that is a good thing, but I warn those folks to be careful what you ask for. That dismantling could become one huge, completely out of control metaphorical snowball. Trying to control the dismantling will be next to impossible. And anyone who might be concerned about there already being too much litigation already better get ready to have their heads explode, because there will be a huge increase in litigation. Our judicial system is neither designed nor equipped to handle a mass of change all at once. I could (and probably should) give an explanation about that, but for now I am asking the reader to trust me. I would add that I believe our society is also not equipped to handle that much change that quickly. Believe it or not, the Justices of the Supreme Court will likely consider such factors if they have to decide the constitutionality of the individual mandate, and if they do, they might decide not to declare it unconstitutional. More on what might happen in the courts in the last section of this post...

My second argument is that the Patients' Choice Act, while not having an express individual mandate, has a de facto mandate that everyone buy health insurance. In other words, what the current law seeks to do via an explicit provision the Patients' Choice Act would accomplish through a combination of provisions, and thus it is really no different than the current law in terms of a mandate that everyone buy health insurance.

Here's why I say that the Republicans' previous (and probable future) proposal has a de facto mandate. One of the main features of the Patients' Choice Act is the elimination of the current tax law which provides for an exclusion for employer-provided health insurance. In its place would be a refundable tax credit of $2290 for individuals and $5710 for families. This money would have to either be spent on buying health insurance or placed in a health savings account (HSA). This tax credit would be available to everyone, even those who have insurance through their employer. Most of the analysis I have read says that this arrangement would lead to a big decline in employers providing health care. Here 's one explanation:

By repealing the exclusion and establishing a refundable tax credit unrelated to employer-based coverage, the Patient’s Choice Act would take away the main federal tax subsidy for employer-sponsored insurance and likely lead a large number of employers to discontinue offering coverage. Since individuals could claim the tax credit regardless of whether they obtained their coverage through their employer or on their own, many employers likely would conclude they no longer needed to provide coverage. Smaller employers, who are the least likely to offer health insurance today, would be the most likely to take this step. People who lost access to employer-based coverage would have to seek coverage either through a health insurance exchange (if an exchange were established in their state) or the existing individual insurance market.

I'm not saying that a major decline in employer-based health insurance is in itself good or bad. Right now I am examining it in the context of this specific proposed legislation. From what I have seen, providing health insurance is a huge cost for employers, and if existing incentives are taken away, a smart business move for them probably would be dropping their insurance plans. But let's look at the effect of this in the context of the Patients' Choice Act. If a given employer drops insurance coverage, the employees are going to have to find some other way to pay for health care. The choices under the Patients' Choice Act are private health insurance or HSAs. For some individuals $2290 per year might cover their annual health costs, so maybe an HSA alone could work for individuals--as long as nothing even semi-major goes wrong with their health. Otherwise, $2290 per year is not going to come close. And if an employee has a family of 4, $5710 per year is not going to go very far, so it is unlikely that an HSA alone would be sufficient for families. Thus, 1) individuals and families are going to need some kind of insurance to make sure they can get adequate health care, and 2) if employers drop their insurance plans, individuals and families are going to need to buy health insurance. Now add to this the fact that under the Patients' Choice Act people do not get the proposed tax credits unless they use that money for health care, and you have a situation where people really will have no choice but to buy health insurance. That is a de facto mandate.

Now, it is true that under the Republican plan, there will be no fine or penalty assessed to people who do not have insurance, and that is a difference between the Republicans and the current law. However, to me that is what we lawyers call a distinction without a difference. Under the Republicans' plan, you will not pay a penalty if you do not buy insurance, but you will not have adequate health care. So your choices are buy insurance or not be able to get adequate health care. Given those choices, what do you think most people will do? And what do you think most people will do when they basically will have access to money, but that access is only possible if they use it for health care?

So why does this matter? It matters because while the Republicans say they are against a law that expressly requires people to have health insurance, they are perfectly fine with a law that still effectively forces people to buy health insurance.

In other words, in terms of an individual mandate to buy health insurance, the Republicans don't have anything to offer that actually is different from the current law.

And I want to add two other points. Mitch McConnell, the Republican leader in the Senate, gave a speech on Nov. 18, 2010, in which he addressed the individual mandate: "By preventing the accumulation of excessive power, the Constitution is designed to reduce the risk of tyranny or abuse from the state or federal government...The health care bill would remove an important bulwark... So fighting this mandate couldn't be more important[.]" Here's what I want to know: Did Mitch McConnell complain about the Patriot Act or the illegal wiretaps of American citizens or any of the numerous acts by our government when the Republicans were in control of Congress and the White House that constitute tyranny and the abuse of power? I know the answer--NO.

My other point is that I find it odd and hypocritical that the Republicans think it is so wrong to force people to buy health insurance but they are perfectly fine with telling people how they have to spend money they receive to buy health insurance or other wise spend it on health care.

B. Health insurance exchanges and other insurance policies

1. How insurance exchanges work

Now it's time to explain how insurance exchanges are supposed to work. The link above gives the following explanation:

A health insurance exchange is an organized marketplace for the purchase of health insurance set up as a governmental or quasi-governmental entity to help insurers comply with consumer protections, compete in cost-efficient ways, and to facilitate the expansion of insurance coverage to more people. Exchanges do not bear risk themselves – they are not insurers. Rather, they would contract with private insurers and possibly offer a public plan option to cover specified populations (such as those obtaining coverage through small employers and those without employer coverage). Ideally, an exchange would promote insurance transparency and accountability, facilitate enrollment and the delivery of subsidies, while also playing roles in spreading risk (i.e., ensuring that the costs associated with those with high medical need are shared broadly) and containing costs.

Here's a practical explanation from Ezra Klein:

Imagine that you decided you didn't like your current health insurance and you wanted to change it. Your employer very likely doesn't offer any alternatives. If you do have a choice, it's almost certainly not between more than three different plans.
You could, of course, spit at your employer's offerings and go buy insurance on your own. But the individual insurance market is a scary place. You're on your own, so you have no bargaining power with insurers. Providers can simply refuse to sell you health insurance, or they can jack up your prices because of past illness. They can sell you a plan that's insufficient for your needs and that's thick with loopholes and technicalities. A favored trick, for instance, is to sell plans that don't cover any preexisting conditions: If you go to a doctor complaining of back pain, but it turns out you've felt back pain before, they don't have to cover any costs relating to the ailment.

The Health Insurance Exchange gives you another option. Unlike your employer, it will have a wide array of competing providers offering different plans with varying benefit levels, emphases and price tags. Unlike the individual market, insurers won't be able to discriminate based on your health history or your future risk. Plans will have to be certified as meeting a minimum level of comprehensiveness. Plans that routinely screw over members will lose customers to competing insurers.
The Health Insurance Exchange combines the benefits of choice that are theoretically available on the individual market with the bargaining power and scale that's generally accessible only in large employers[.]

(emphasis added). I am one of those individuals who have been screwed over in all the ways described above. Anyone who claims that there is a good free market for individuals is flat out wrong. The health insurance exchange is supposed to give individuals the same benefits as those in large groups AND give individuals more choice and protection.

The exchange is supposed to increase market competition in two ways: 1) between the various policies in the exchange, and 2) in the overall consumer market for health insurance. As for 2), what I mean is that the exchange is supposed to compete with the insurance policies that are not part of the exchange. In theory, this competition should help lower prices for all insurance and provide better service to consumers. The success and continued viability of an exchange is dependent on sufficient participation therein--both in terms of the the number of policies made available and the number of people getting their insurance through the exchange as opposed to outside the exchange. If either number drops, the exchange will like fail.

There are two factors which can cause an exchange to fail: "adverse selection," which can be caused by insurers "cherry picking." Before explaining this, I have to point out that under the current law and the Republican Patients' Choice Act, insurance companies would be free to offer insurance policies outside the exchanges. In other words, they would not have to offer all their policies through the exchanges, and not all of their policies would have to meet the requirements for policies in the exchanges. As will be explained, this is particularly significant under the PCA. "Adverse selection" occurs when

healthy and sick people to separate into different insurance plans...which can cause plans attracting less-healthy enrollees to become increasingly unaffordable over time. In addition to harming vulnerable individuals, adverse selection would undermine the very sort of competition based on price and quality that should drive insurers to offer better-value benefits, and it could unravel health-insurance exchanges over time.

Why this happens is explained by "cherry picking." This op-ed piece explains how this shut down the insurance exchange in Texas in 1999.

our exchange failed not because it wasn’t needed, and not because the concept wasn’t sound, but because it never attained a large enough market share to exert significant clout in the Texas insurance market. Private insurance companies, which could offer small-business policies both inside and outside the exchange, cherry-picked relentlessly, signing up all the small businesses with generally healthy employees and offloading the bad risks—companies with older or sicker employees—onto the exchange. For the insurance companies, this made business sense. But as a result, our exchange was overwhelmed with people who had high health care costs, and too few healthy people to share the risk. The premiums we offered rose significantly. Insurance on the exchange was no longer a bargain, and employers began backing away. Insurance companies, too, began leaving the alliance.

As explained below, the exchanges proposed by the Patients' Care Act would be susceptible to adverse selection and cherry picking.

2. Insurance exchanges in the PPACA and PCA

As noted, both the current law and the Republicans' proposal call for state-run insurance exchanges, but there are major differences.

Under the PPACA, each state will be required to set up an insurance exchange for individuals and another exchange for small businesses. Under the Patients' Choice Act from the Republicans, the exchanges are strictly voluntary. In other words, states do not have to establish them. Thus, under the PCA, if a state decides not to have an exchange, individuals would still be subject to the same problems they faced before. And if more states choose not to have an exchange, then more individuals will be subject to those problems.

Under the PPACA and PCA insurance plans that are part of an exchange are subject to certain restrictions which act as consumer protection provisions. For instance, under the PCA insurance policies offered through an exchange would provide some protection against exclusion of preexisting conditions and excessive premiums and would require that anyone seeking insurance through the exchange would be able to purchase a policy regardless of health status. That is also true under the PPACA, but here's the difference: under the PCA those protections are required ONLY for policies offered through an exchange while under the PPACA all consumer protection provisions apply to all insurance policies--and the PPACA provides many more consumer protections that the PCA.

Because of these differences, there is a good chance exchanges would fail under the Republicans' Patients' Choice Act. Without requiring consumer protections to apply to ALL insurance policies--inside and outside the exchange--the PCA offers little incentive for insurers to participate in the exchange. Why subject yourself to all kinds of restrictions that you have avoided and can still avoid simply by not submitting policies to the exchange? And what incentive is there for insurance companies to stop cherry picking? Under the PCA, insurers could do exactly what they did in Texas, namely offer non-exchange policies to healthy companies and individuals, thus leaving all the unhealthy people--and their greater risks and costs--to the exchange. That makes good business sense for the insurance companies, so why won't they do that if the opportunity exists? And that opportunity will exist under the PCA.

On the other hand, that opportunity will be minimized if not eliminated under the PPACA. Every person will have to be guaranteed access to insurance regardless of health status regardless of whether they seek insurance in or out of the exchange. Every insurance plan, both in and out of the exchange, will have to take steps to spread risk, which means that a plan cannot simply be for all healthy people at the exclusion of unhealthy ones. All the insurance policies outside the exchanges will have to have the same consumer protections that policies in the exchange have. All of this reduces the incentive to cherry pick and create adverse selection. And that provides some incentive for the insurance companies to participate in the exchange, for two reasons 1) they can no longer profit from this sort of conduct, and 2) because of the individual mandate, they can have easy access to a greater number of possible insureds, and that will lead to profits for them. In other words, given the across-the-board consumer protections in the PPACA, it could be in the insurance companies' best interests to see that the exchanges succeed.

And here's something else to keep in mind. Under the PCA, if a state chooses to establish an exchange (and remember the state can choose not to do so), there is nothing in the PCA that says the state has to always maintain an exchange. If the exchange is failing, the state can shut it down. Thus, if cherry picking and adverse selection occur, the state can simply decide to end the exchange. Since the PPACA requires states to open and maintain an exchange, states do not have the option to shut down an exchange.

The bottom line is that exchanges under the PCA have a high risk of failing, and if that happened, we would be left with the same insurance system we had before the current law. Not only is that not "change we can believe in." It's no change at all.

C. Conclusion as to what the Republicans have to offer

When it comes to alternatives to the PPACA, the Republicans have a big bag of nothing. The current law already has as two of its main features ideas that originated with the Republicans--the individual mandate and insurance exchanges.

Now they are complaining about the individual mandate, which is really ridiculous since their own Patients' Care Act operates as a mandate as well. Without the mandate, the whole deal for the insurance industry under both the PPACA and PCA is a non-starter. Why? Because without a mandate, there would be a chance that some other form of health coverage could get started, and that is the last thing the insurance industry wants. On the other hand, an individual mandate, be it express or de facto, helps keeps the whole system insurance-based, which is exactly what the insurance industry wants. And there is no question that the Republicans want to keep the insurance industry happy. Anyone who thinks otherwise is either delusional or naive to the point of being a danger to others. So it is not plausible to think that the Republicans are sincerely against an individual mandate. Also, as I mentioned earlier, if the system is to be insurance-based, an individual mandate makes sense. The mandate, when combined with exchanges, will increase the number of insureds, which should increase the bargaining power of consumers, increase competition among insureds, and give insurance companies incentive to offer policies that provide good coverage for good prices. That's the theory anyway. And , in my opinion, the exchanges are not likely to succeed without the mandate. So, a mandate that everyone have health insurance is a key way to try to provide the factors which could increase quality and decrease price over time. In other words, any effort to "reform" an insurance-based health care system to reduce insurance costs, increase access to insurance, and improve service to the consumer pretty much requires an individual mandate. The Republicans know this, so again I say their objections to the individual mandate concept are not sincere.

And in fact, the PCA is actually less of a reform than the PPACA. As shown, it contains a high risk that exchanges, if established at all, would have a high risk of failing. Given that any consumer protections under the PCA would come only through exchanges, the PCA presents very little protection for consumers. Also, the exchanges would be a key to providing the competition and bargaining power to individuals requisite to lowering costs and increasing service over time. Again, given the chance of failure of the exchanges under the PCA, the PCA really would not reform anything, because we would likely end up with exactly what we had before.

This analysis of the PCA is important because the PCA was the only purely Republican bill to be considered. It was put together and sponsored by Tom Coburn and Richard Burr in the Senate and Devin Nunes and Paul Ryan--the GOP star on budget matters--in the House. In my opinion, the PCA will be the legislation put forth again by the Republicans if the opportunity arises, and that is why I continue to say the Republicans have a big bag of nothing.

VI. So what are the Republicans going to do?

The Republicans are not going to repeal the PPACA.

So, they are going to put on a show for their energized and angry base. They will continue to rail against the PPACA, especially the individual mandate, and they will blame the Democrats for not changing anything. That way they keep their base placated to a degree and don't have to incur the risks inherent to actually doing something substantive.

As for the effort to have the mandate declared unconstitutional, the Republicans will continue to pursue that, but don't expect results anytime soon. Given that the matter has to make its way to judgment in the U.S. District Court and then go to the Court of Appeals before it evers gets a chance to go to the Supreme Court, the matter is not likely to be resolved soon. More to the point, it might not be resolved before the 2012 election. In fact, I would bet that although the Republicans will continue to pursue the case, they will not try to expedite the matter because delay would work to their advantage. As long as the case is not fully and finally resolved, the Republicans still do not have to come up with policy and legislation to replace the mandate, and they can still bitch and moan about the mandate. If the case is resolved quickly and the mandate is found unconstitutional, then the Republicans will have to do something, and they don't want that. If the case is resolved quickly and the mandate is found constitutional, the chances of the Republicans ever being able to change the current law go down significantly, and they don't want that. See, either outcome could adversely affect the Republicans in the 2012 election. By not getting a final ruling one way or the other, the Republicans can continue what has worked for them--bitch and demonize the other side without having to back up anything with real, meaningful action.

And that is precisely what I predict the Republicans will do.

Predicton: The Republicans are not going to do anything.

2010-11-18T23:50:00.000-06:00

I. Overview

I need to clarify this matter a bit. What I mean is that the Republicans are not going to do anything substantive. The Republicans are not going to come up with any substantive policy. The Republicans are not going to create or pass any substantive legislation. They are going to try to repeal some legislation--at least that's what they claim--but if they are successful, then what will they do? Nothing, that's what.

The Republicans have spent the last few years complaining about what they think is wrong, but, with one exception, they have not explained what they think needs to be done to make things right. They have been "the party of 'no'" and nothing else. And now that they have some power again and, according to them, the clear support of the majority of the nation, they have to try to do something substantive and constructive.

I am predicting that the Republicans will not do anything substantive because

they have no policy ideas to implement,
they have nothing to replace the laws they want to repeal, and
even if they did, they will not run the risk of actually doing anything.

II. No policy ideas to implement and nothing to replace repealed laws

A. What is and is not policy.

When I refer to "policy," I am not referring to the stated general objectives of the Republicans such as making sure Obama is a one-term President or "we're going to listen to the American people." Those aren't policies. "Policy" is an articulation of objectives AND ways to meet those objectives. And the Republicans have said precious little on the policy front.

Mitch McConnell, the Republican leader in the Senate, said immediately after the election that the Republicans' "top political priority over the next two years should be to deny President Obama a second term in office." And just how is that going to constitute actual plans and steps to reduce the deficit, help strengthen the economy, provide jobs, etc.? You see, all of those matters and more need to be addressed NOW, not two years from now. As I will discuss in a later post, McConnell's stated top priority is simply an indication that the Republicans do not plan to do anything that is substantive in nature.

John Boehner, who will be the Speaker of the House, said the day after the election that "our job is to listen to the American people and follow the will of the American people." That might be a good idea, but it's not policy. Policy entails coming up with a way to achieve what the people want, and the Republicans don't have a clue. Boehner also said that "It's pretty clear the American people want us to do something about cutting spending here in Washington and helping to create an environment where we get jobs back in our country." Now that's getting close to being policy, but again the Republicans have not yet said anything about how to go about doing these things.

And Boehner might want to rethink his basic philosophy, but more on that as we go...

B. The Bush tax cuts

One policy the Republicans have articulated is the extension of all the Bush tax cuts, which are set to expire on January 1. That seems to be their only proposed solution to all our economic problems, as they have said that failure to make all of the Bush tax cuts permanent will keep the economy from recovering, will harm all small businesses, and generally cause all manner of truly bad things to happen. On the other hand, according to the Republicans, extending all of the Bush tax cuts will stimulate the economy, create jobs, and generally cause all manner of truly good things to happen.

Let's keep in mind that the Democrats want to extend almost all of the Bush tax cuts. The only one they want to eliminate is the tax cut for income above $250,000 (as in the first $250,00 would still be entitled to the other tax cuts), and that affects 2% of the population. So given that the Republicans have to date absolutely refused to vote on anything except extending ALL of the Bush tax cuts, not only are the Republicans essentially willing to eliminate tax cuts for 98% of Americans, they are apparently arguing that a tax cut for the richest 2% of Americans is the real key to economic recovery.

I really should devote a separate post to discussing why the Republicans are wrong about this, but for now I will say that this is really nothing more than the supply side, trickle down approach that Reagan tried. And that did not work, now did it?

So, the one policy that Republicans have said they want to implement is an old idea that didn't work before, and in the meantime they are willing to deny tax cuts to 98% of Americans in order to implement this idea that didn't work before.

Furthermore, recent polling shows that if indeed the Republicans "will listen to the people," they (the Republicans) should consider dropping their dogmatic demand that it's either all of the Bush tax cuts or none of them. According to the National Exit Polls, 36% of Americans want to extend the Bush tax cuts to everyone making less than $250,000, and 15% want to end all of the Bush tax cuts. Thus, on election night 51%--a majority--did not want to extend the Bush tax cuts for the wealthiest 2%. In contrast, an AP-GfK poll conducted from Nov. 3-8 produced a different result, with 53% favoring extension of all the Bush tax cuts. Then again, a CBS News poll done from Nov. 7-10 showed that 44% want to keep the Bush tax cut for the top 2%, but 49% want that tax cut to expire. A similar result was reached in the NBC/Wall Street Journal poll taken from Nov. 11-15. In that poll, 49% wanted the top tax cut to expire while 46% did not. What I'm trying to point out is that there is anything but a clear mandate for the Republicans to demand that the Bush tax cut for the top 2% be extended, and there certainly is no mandate for the Republicans to stick to that demand at the expense of the other 98% of the population.

C. Other policy areas at a glance

1. Health care

Republicans have said they want to repeal the health care law. And can anyone tell me what the Republicans want to do to replace those laws? Anyone? Bueller...? I am working on a detailed post about health care. In it I will explain that the Republicans won't repeal health care for several reasons, including

The insurance industry got a lot of what it wanted.
If the law is repealed, the insurance companies would lose favorable gains and risk losing much more.
The Republicans are not going to subject their close friends the insurance companies to such loss and risk.
The current law already contains Republican ideas.
The Republicans don’t have anything better to offer.

For now I will give you a basic explanation. I think the health care reform legislation did not reform anything. In the early stages of the "reform" process I had a post discussing my displeasure with what was being proposed, which ended up being the basic framework for what was eventually signed into law. My basic complaint is that the "reform" largely left the status quo in place. For you doubters, realize this: before "reform" our health care system was based on and controlled by insurance, and after "reform" our health care system is still based on and controlled by insurance. Under the current law, every person will be required to have health insurance (or face a penalty), and thus the means of delivering health care will become even more entrenched in and controlled by the insurance industry. What the current law does is change access to and delivery of insurance, not the actual health care. The current law also does not address in a direct and/or meaningful way the cost of the actual health care. The current law does not come close to reform of the health care system. As I stated in my previous post, "It seems that in this country we have determined that 'health care' and 'health insurance' are the same thing, and that is just bullshit." And John Boehner is talking the same ol' bullshit. Right after the election he said that "we have to do everything we can to try to repeal this bill, and replace it with commonsense reforms that will bring down the cost of health insurance." Notice that he said nothing about bringing down the cost of actual health care.

And once again, if Boehner and the Republicans plan on listening to the American people, they might want to rethink the whole repeal the health care law thing. Boehner declared on November 3 that the Republicans had a mandate to repeal the health care law. Johnny might want to take a chill pill. The National Exit Polls showed that 48% want the law repealed, but 47% do not, and while "repeal" was 1% more popular, it still did not garner a majority. The CBS News poll mentioned above had it 45% for repeal, 44% for no repeal. However, a USA Today/Gallup poll done on Nov. 4-7 shows that only 35% want to repeal the health care law (10 % want repeal with no replacement, and 25% want repeal and a new law in its place), while 56% do not want a repeal (20% think the law is fine as is, 29% want it expanded, and 7% want it scaled back). In other words, the numbers do not show a mandate for the Republicans to repeal the health care law.

2. The federal deficit/government spending

The Republicans have also decided that after years of running up the federal deficit and saying the deficit is not a problem that now the deficit is a huge problem. Funny how those complaints were not made by the Republicans until after the Democrats had majorities in Congress and Obama in the White House...Anyhoo, the Republicans have offered nothing in the way of how the deficit problem should be solved, other than to say spending must be cut. Thanks for that update from the Department of the Bloody Obvious, but exactly what do the Republicans want to do to cut spending by the federal government? I'll give you a hint about what they will not do, and that is get rid of earmarks and other pork projects, in spite of their declared moratorium on earmarks.

I am also working on a post that addresses this topic in more detail. For now I will say that the Republicans can't even get everyone in their own party to want to get rid of earmarks. Furthermore, the biggest part of the budget which can be cut is discretionary spending, and far and away the biggest part of that is the defense budget. Anyone seriously think that the Republican Party is going to drastically cut defense spending? And how can they address the deficit without addressing revenue coming in? I don't give a rat's ass what they say, trying to balance any budget--especially if one wants to do it sooner rather than later--necessarily involves spending AND revenue.

3. Employment

The Republicans have attacked Obama and the Democrats for not solving the employment problem, but what do the Republicans think should be done to create jobs--other than keep the Bush tax cut for the top 2% of Americans?

4. Financial reform

The financial reform act, known as the Dodd-Frank Act, was signed into law on July 21, 2010. Final Congressional approval of the act came on July 15. On that day, John Boehner was already calling for a repeal. He was soon joined by Representative Mike Pence, Senator Richard Shelby, the ranking Republican on the Senate Banking Committee, and others.

I don't recall hearing much talk about repealing Dodd-Frank in the run-up to the election or since the election, and I have been unable to find anything online. Maybe that's because most Republicans have actually been doing that "listening to the people" thing. According to a USA Today/Gallup poll done at the end of August, "The financial reform bill President Obama signed into law in July is the most popular of five major pieces of legislation Congress has passed in the past two years--in fact, it is the only one...that a majority (61%) of Americans support."

The Republicans are not going to try to repeal the financial reforms. As explained on Nov. 3 by Douglas J. Elliot of the Brookings Institute,

Republicans must be very careful not to feed public perceptions that they are too friendly with the despised bankers. Concern on that score kept Republicans from holding firm on their Senate filibuster of the original bill and that concern will remain, since hatred of bankers seems unlikely to fade away anytime soon. Related to that, they must be aware that any momentum to reverse parts of Dodd-Frank could be undercut by another major lawsuit, or even criminal charges, against major Wall Street players. The SEC suit against Goldman Sachs was a strong force that drove Dodd-Frank forward in its final phases and past crises show us that there are likely to be a number of additional legal actions over time as the crisis is dissected further.

And if they did try to repeal Dodd-Frank, what would they propose in its place? I'm not aware of any specifics given by the Republicans. Surely they would not simply want to go back to the way things were before Dodd-Frank. After all, it was not regulation that led to the banks and securities firms and other financial institutions doing all the insane crap that resulted in the financial meltdown. Thus, if Dodd-Frank was repealed, something would need to be put in its place. Why? Basically so the banks and Wall Street would not keep doing the same crap that got us here, or as Pat Garofalo put it,

[B]usinesses large and small are having trouble accessing loans because the economy is weak and banks are holding onto money (much like large corporations are). Lifting regulations is not going to suddenly make them feel that economic conditions merit making loans, but it would free them up to reengage in some of the risky practices that led to the financial meltdown.

So in order to A) avoid looking like they are "too friendly with the despised bankers," and B) actually do something in the interest of the economy, the Republicans would need to come up with something to replace Dodd-Frank. And just what would that be? Can anyone tell us?

5. Foreign policy

We still have two wars going on, the war on terrorism necessarily involves dealing with other countries, the Middle East is still a mess, North Korea is still ruled by crazy-ass Kim Jong-Il, Iran is still a huge problem, and on and on...Have the Republicans talked about any of this lately? Not just "no," but "hell, no."

Granted, in our system of government, these matters are primarily the domain of the Executive Branch, but Congress has oversight responsibilities on all of this. And of course, Congress holds the purse strings for all of these matters. Also, Congress has to consider and ratify all treaties with foreign nations in order to make them effective. In other words, Congress has work to do in the foreign policy arena.

And yet the Republicans are basically ignoring foreign policy. The Tea Party unquestonably energized the Republican Party and was a key component in the GOP's success in this election. Where does the Tea Party stand on foreign policy issues? I have no idea. The Tea Party is all about domestic issues. Tea Party darling Rand Paul typified this approach when in July he told the National Review Online that on the campaign trail "foreign policy is really a complete non-issue." Well, buddy-boy, now that you are in office it's a major issue that you and your fellow Republicans are going to have to deal with.

I am going to write more about this in another post, but apparently one foreign policy issue on which the Republicans have articulated a position is the New START Treaty (new strategic arms reduction treaty) with Russia. The old START Treaty expired last December. The Republicans are against New START, and that position is frightenly short-sighted and dangerous. Why? Because the New START Treaty will have an impact on so many issues that are of vital importance to America, and failure to ratify the treaty could likely result in many more failures in international affairs--and some of those relate directly to our national security and efforts to combat terrorism. And what are the Republicans proposing be done in place of this treaty regarding reduction and monitoring of Russian nuclear weapons--and weapons material--and improving relations with Russia, which could influence affairs in the Middle East and most notably with Iran? Nothing. Not a damn thing.

III. The Republicans are not going to run the risk of doing anything.

The Democrats basically set themselves up for failure starting in 2009. Obama ran on the theme and promise of "Change," and most of the rest of the Democrats in Washington adopted that refrain. Change was not going to happen quickly enough or in great enough degree to satisfy people even under the best of circumstances, and the circumstances were made difficult because of strategic errors made primarily by Obama (different discussion for a different post). Basically, the Democrats raised expectations and then failed to meet them, particularly among many Democrats. To be more specific, many people who would generally be considered to more toward the left end of the political spectrum were unhappy with the lack of change.

Even so, the Democrats have actually done some things since 2009, such as the health care law and financial regulation legislation. And although the bailout of the auto industry started in December 2008, before Obama took office, it started while the Dems controlled Congress, and then the Obama administration took control of it. The Republicans focused on what the Dems did, and managed to whip their base into a frenzy, and that went a long way to achieving success in the mid term elections.

The Republicans have set themselves up for failure, but I think they have made their situation even worse. By harping incessantly about how bad the Democrats have been and how quickly they have ruined the country, the Republicans created a wave of anger and unrest that resulted in massive gains by the Republicans. However, they have inadvertently set the expectation bar even higher. And, in my opinion, part of those expectations include a factor of impatience.

The expectations created by the Republicans when combined with the actual logistical circumstances present multiple dilemmas for the Republicans. If they do nothing, they risk making their now energized and angry base mad at them. Yet they have to appease their angry and energized base somehow. If they do something--other than try to repeal various legislation--they run the risk of the Democrats turning the tables on them and showing that what the Republicans wanted to do did not work. At the least, the Republicans would not find it so easy to simply blame the Democrats. Moreover, given that the Republicans control the House and not the Senate, they cannot simply push through legislation they want.

That means that in order to actually get something done, the Republicans will have to cooperate and work with the Democrats. AND they might actually have to compromise on some matters. Cooperation and compromise will not be tolerated by the energized and angry Republican base. The GOP's tactics over the last few years have ensured that. And Republican lawmakers have already shown they are not going to be in the mood to compromise on anything. McConnell, in his post election speech at the Heritage Foundation said the following:

The formula is simple, really: when the administration agrees with the American people, we will agree with the administration. When it disagrees with the American people, we won’t. This has been our posture from the beginning of this administration. And we intend to stick with it. If the administration wants cooperation, it will have to begin to move in our direction.

(emphasis added). Mitch, you might want to check out some of the poll numbers listed above. Maybe then you will figure out that cooperation is not a unilateral exercise. And House Majority Leader Eric Cantor also showed that Republicans are not going to cooperate or compromise.

Now add in the fact that under the best of circumstances legislation and change in our government do not happen quickly, and the Republicans seemingly have some tough choices to make.

There are risks regardless of what path they choose, but they are going to take the path that presents the least amount of risk. They are going to continue to be the "Party of 'No.'" Only now they are going to be even worse. They are going to continue to squawk about repealing this law or that without any intention to do that. They don't really want repeal because they would have to come up with some actual policy and legislation, and they don't have any. Moreover, if they have to come up with policy, they run the risk of it being rejected by public opinion, or, worse yet, having their ideas exposed as bullshit or nothing really different from what the Democrats come up with. They are going to reflexively be against anything and everything the Democrats propose. It is in this way that they can try to placate their energized and angry base. It is in this way that they can try to avoid responsibility for anything. And that is exactly what I predict they are going to do.

Video related to my Republican predictions

2010-11-17T04:19:00.000-06:00

I am still working on the next few posts that I promised to explain my predictions for the Republicans over the next two years, but until I finish those, here are two videos which provide some explanation.

WARNING: These are from the November 16 edition of "Countdown," so I realize that some will not want to watch them in the way that I would not want to watch just about any video from Fox News.

Political predictions for the next two years

2010-11-09T14:00:00.000-06:00

This begins a series of posts prompted one week ago--on election night--when a friend of mine was gloating about the results. I made a few predictions to him and asked him some questions--and I am still waiting for answers from him. In the meantime, I have been doing some more research to back up my previous predictions.

To get things started, here are some of my basic predictions:

The Republicans now must do something since they have gained much more power, but they aren't going to really do anything. In particular, they are not going to do much of anything different from a substantive perspective.
Instead, the Republicans are going to play the political game of trying to make Obama look bad.
One reason for the above two predictions is that the Republicans have no different substantive ideas than the Democrats.
Another reason for the first two predictions is that the GOP faces a major internal battle, particularly with the Tea Party.
The Tea Party--whatever that is exactly--is not going to change things.
Unless the Republicans can prove me wrong on my predictions, Obama is going to be reelected.

I will explain my predictions in subsequent posts.

Imam Feisal Adbul Rauf's "60 Minutes" interview

2010-09-01T18:24:00.000-05:00

Overview

I begin with a matter of form. As an American, my tendency is to refer to people by what we Americans would consider a surname. In the case of Imam Feisal Abdul Rauf, that would seem to me to be "Rauf." However, on the Cordoba Initiative website, he is always referred to as by his full name or "Imam Feisal." Consequently, I will from now on refer to him as "Feisal" or "Imam Feisal."

In the last few weeks, all kinds of questions have been raised about Park 51 and Imam Feisal. There have also been many allegations made about Park 51 and Imam Feisal. I have addressed some of those in my posts about the bullshit issued by Newt Gingrich, but there are plenty more to discuss, and this post will start that process.

Let's get started...

On 60 Minutes, the Imam said that American Foreign policy is an accessory to terrorism.

At issue are comments Feisal made in an interview with Ed Bradley that aired on "60 Minutes" on September 30, 2001. From a transcript of that interview, here is the excerpt that has been repeatedly cited in criticism of Feisal:

Bradley: Are you in any way suggesting that we in the United States deserved what happened?

Feisal: I wouldn't say that the United States deserved what happened, but United States policies were an accessory to the crime that happened.

Bradley: You say that we're an accessory? How?

Feisal: Because we have been accessory to a lot of innocent lives dying in the world. In fact, in the most direct sense, Osama bin Laden is made in the USA.

That really sounds bad, right? This excerpt of the interview is damn near the only excerpt that you will find reprinted on almost every website in opposition to Park 51. What you will rarely--and I mean rarely--find are the statements bracketing this excerpt. Here's a more complete excerpt:

Bradley: And throughout the Muslim world, there is also strong opposition to America's foreign policy, particularly in the Middle East because of its support of Israel and economic sanctions against Iraq.

Feisal: It is a reaction against the US government politically, where we espouse principles of democracy and human rights, and where we ally ourselves with oppressive regimes in many of these countries. [NOTE: I found this portion of the transcript at News Busters, a website dedicated to "exposing and neutralizing liberal media bias."]

Bradley: Are you in any way suggesting that we in the United States deserved what happened?

Feisal: I wouldn't say that the United States deserved what happened, but United States policies were an accessory to the crime that happened.

Bradley: You say that we're an accessory? How?

Feisal: Because we have been accessory to a lot of innocent lives dying in the world. In fact, in the most direct sense, Osama bin Laden is made in the USA.

Bradley: Bin Laden and his supporters were, in fact, recruited and paid nearly $4 billion by the CIA and the government of Saudi Arabia in the 1980s to fight with the mujahadeen rebels against the former Soviet Union, which had invaded Afghanistan. After the Soviets pulled out, the Saudis, our best friends in the Arab world, our staunchest ally during the Gulf War, poured hundreds of millions of dollars into the newly-formed Taliban regime, and then felt that bin Laden and the Taliban were out of control. Bin Laden's faith is a strict, puritanical form of Islam called Wahabbism, which was founded in the 18th century in Saudi Arabia, and is now that country's predominant ideology. [NOTE: I found this explanation by Bradley on FactCheck.org.]

So let's examine Feisal's comments from this fuller context.

Comments about U.S. foreign policy and reaction thereto

Feisal explained that part of the objection of some Muslims to U.S. foreign policy is a reaction to what some see as hypocrisy by the U.S.: talking about democracy and human rights while supporting governments that are oppressive and un-democratic. I wrote about this very topic back in 2005 in reaction to Bush's second inaugural speech. That post dealt with the then current circumstances--all post 9/11--while Feisal was speaking about events prior to 9/11, but my earlier post gives a good description of our country supporting oppressive governments while supposedly promoting democracy.

And a review of history shows that this country has engaged in such behavior in the past. The history of Central and South America proves this. Pinochet in Chile and Anastasio Somoza Garcia in Nicaragua are two examples. Nicaragua then became part of the Iran-Contra affair, and speaking of Iran, it was the U.S. that planned and executed the ovethrow of a democratically elected government and put the Shah in power. And then there's the fact that the U.S. helped none other than Saddam Hussein gain and keep power in Iraq (see this interview for more).

Now I know what some of you are thinking: I am just another one of those liberals who wants to apologize for America. Wrong. I am simply stating facts without judging. The reality is that foreign policy sometimes requires making deals and alliances with bad people and bad regimes. Sometimes those deals benefit American interests, and sometimes they are calculated risks. Take Iraq and our support of Saddam. Saddam was Iran's enemy and helped keep Iran from expanding its influence and spreading its theocracy. Yes, Saddam was oppressive and evil, but can you say that not having any check on Iran in the 1980s would have been a good thing?

By the way, my post about Bush's second inaugural speech also gives an idea of why sometimes these kinds of deals are not easily classified as bad.

Whether specific instances of U.S. support of oppressive regimes was good or bad, right or wrong is not the point for purposes of this discussion. What is pertinent is that it is a fact that the U.S. has in the past supported such regimes while still espousing democracy and human rights. In other words, we have not always "practiced what we preached." And that has caused many people around the world to view America as hypocritical. I want to stress that I am talking about the perceptions and feelings of people outside our country. Again, whether those perceptions and feelings are correct or incorrect is not the point. The point is that those people have those perceptions and feelings AND there is a basis in fact for having them. I believe that is one point Feisal was trying to make.

And that puts Imam Faisal's next remarks into context.

U.S as accessory and bin Laden being "made in the USA"

Feisal first said that U.S policy was an accessory to the crimes of 9/11, but then he also said "we have have been accessory to a lot of innocent lives dying in the world." (emphasis added). And then came the statement that really upset a lot of people: "In fact, in the most direct sense, Osama bin Laden is made in the USA."

The statement about U.S. policy being an accessory is another way of stating his point about the U.S supporting oppressive regimes while still speaking about democracy and human rights (as discussed in the previous section).

As for the U.S. being responsible for the deaths of innocent people, oppressive regimes pretty much kill innocent people--that's part of the reason why they are "oppressive."

Now let's talk about bin Laden...Take a look at what Ed Bradley said immediately after Feisal's "made in the USA" comment. Bradley's statements certainly support Feisal's claim. However, I have to say that I have found little evidence of bin Laden and other Arabs being recruited, trained, and funded by the CIA. There is plenty of evidence that the U.S. funded and supplied weapons to the Afghans fighting the Soviets, but the official U.S. government position is that the U.S. never had anything to do with the Arab mujahadeen fighting in Afghanistan against the Soviets. On the one hand, I find that position persuasive, but on the other hand, that position does not conclusively prove or disprove anything, and we are talking about the CIA and covert operations. That means we might never know the full story for many years (as was the case with CIA involvement in the Guatemalan coup of 1954). Still, on the basis of what information I have found, I think that Bradley's statements cannot be considered corroboration of what Feisal said--to the extent he was claiming that bin Laden had been recruited, trained, and/or funded by the CIA.

And it appears that is what Feisal was claiming. As stated on the Cordoba Initiative FAQ page,

The "60 Minutes" piece was completely incorrect as the statement was edited out of context. In the full interview, Imam Feisal describes the mistake the CIA made in the 1980s by financing Osama Bin Laden and strengthening the Taliban. This view is widely shared today by journalists, foreign policy experts and the US government. Imam Feisal Abdul Rauf underlines the importance of not supporting “friends of convenience” who may later become our enemies. This is common sense.

The only defense I can offer of these claims at this time is that there were many others who thought (and still think) there was a connection between bin Laden and the CIA during the Soviet occupation of Afghanistan. Still, I cannot conclude at this time that there was such a connection.

However, that does not close the discussion on bin Laden. There is another sense in which bin Laden was "made in the USA." It appears that U.S. foreign policy had a direct effect in creating the bin Laden that came to attack America directly. As the BBC wrote in April 2003:

Ever since the 1991 Gulf war, the US has had about 5,000 troops stationed in Saudi Arabia - a figure that rose to 10,000 during the recent conflict in Iraq.
*******
Saudi Arabia is home to some of Islam's holiest sites and the deployment of US forces there was seen as a historic betrayal by many Islamists, notably Osama Bin Laden.

It is one of the main reasons given by the Saudi-born dissident - blamed by Washington for the 11 September attacks - to justify violence against the United States and its allies.

Indeed, well before 9/11 bin Laden had often complained about the American presence in Saudi Arabia--and Jerusalem as well. The PBS series "Frontline" devoted an entire show to bin Laden, and the web site for that show contains many of his complaints in this regard. This page in particular has an extensive litany of bin Laden's pronouncements. Some examples appear below. Note that bin Laden also complains about U.S. policy and actions resulting in deaths. Also note that one of his biggest complaints concerns U.S. support for Israel.

August 23, 1996

Several months after being expelled from the Sudan, bin Laden issues his "Declaration of War Against the Americans Who Occupy the Land of the Two Holy Mosques."

October - November 1996

Bin Laden is quoted in October/November issue of Nida'ul Islam magazine as saying:

"As for their accusations of terrorizing the innocent, the children, and the women, these are in the category of 'accusing others with their own affliction in order to fool the masses.' The evidence overwhelmingly shows America and Israel killing the weaker men, women and children in the Muslim world and elsewhere."

March 1997

In a CNN interview with Osama bin Laden, he says:

"We declared jihad against the US government, because the US government is unjust, criminal and tyrannical. It has committed acts that are extremely unjust, hideous and criminal whether directly or through its support of the Israeli occupation."

The "Frontline" site also contains a May 1998 interview of bin Laden by John Miller of ABC News. Here are some excerpts from that interview:

The call to wage war against America was made because America has spear-headed the crusade against the Islamic nation, sending tens of thousands of its troops to the land of the two Holy Mosques over and above its meddling in its affairs and its politics, and its support of the oppressive, corrupt and tyrannical regime that is in control.
*******
The truth is that the whole Muslim world is the victim of international terrorism, engineered by America at the United Nations. We are a nation whose sacred symbols have been looted and whose wealth and resources have been plundered. It is normal for us to react against the forces that invade our land and occupy it[.]
*******
After World War II, the Americans grew more unfair and more oppressive towards people in general and Muslims in particular. ... The Americans started it and retaliation and punishment should be carried out following the principle of reciprocity, especially when women and children are involved.
*******
Our mothers and daughters and sons are slaughtered every day with the approval of America and its support. And, while America blocks the entry of weapons into Islamic countries, it provides the Israelis with a continuous supply of arms allowing them thus to kill and massacre more Muslims.
*******
American presence in the Gulf provides support to the Jews and protects their rear. And while millions of Americans are homeless and destitute and live in abject poverty, their government is busy occupying our land and building new settlements and helping Israel build new settlements in the point of departure for our Prophet's midnight journey to the seven heavens. America throws her own sons in the land of the two Holy Mosques for the sake of protecting Jewish interests.

These statements from bin Laden--all well before 9/11--reflect what Feisal described in the "60 Minutes" interview of September 30, 2001: reaction to U.S. foreign policy that some Muslims saw as hypocritical and as causing the deaths of innocent people. For purposes of this post, it is important to note that bin Laden's complaints have some basis in fact. That is not to say that bin Laden is 100% correct in his recitation of facts or that I agree with his interpretation of the facts. Nonetheless, I believe it is accurate to say that bin Laden's reaction to U.S. policy and actions caused him to some degree to be "made in the USA."

There are post-9/11 statements from bin Laden which support this conclusion. I will cite two sources, and rather than quote them here, I encourage people to read them for themselves. One source is a videotape from bin Laden from December 27, 2001. The other source is the "October surprise" video from late October 2004. [NOTE: Some still question the authenticity of this video.]

So, according to the leader of Al Qaeda, it was not our freedom he hated, but rather our foreign policy, which he viewed as unjust and responsible for innocent deaths. In that sense, Feisal was accurate in saying that bin Laden was "made in the USA."

Feisal did not blame America for 9/11

Many opponents of Park 51 are claiming that in the "60 Minutes" interview Feisal blamed America for 9/11. These opponents apparently ignore the fact that he said "I wouldn't say that the United States deserved what happened[.]" They also ignore something he said earlier in the interview:

Fanaticism and terrorism have no place in Islam. That's just as absurd as associating Hitler with Christianity, or David Koresh with Christianity. There are always people who will do peculiar things, and think that they are doing things in the name of their religion. But the Koran is... God says in the Koran that they think that they are doing right, but they are doing wrong.

Thus, Feisal ultimately put the blame on the terrorists, not America.

Conclusion

When the full context of Feisal's statements in the interview and the facts and history underlying those statements are examined, it is not reasonable to conclude that Feisal was blaming America for the 9/11 attacks. His comments about U.S. foreign policy provided an explanation as to why the terrorists attacked us. That explanation had a basis in facts, and it gave some insight into why some Muslims seek to attack America. He expressly said that we did not deserve what happened, and he said that there is no justification for terrorist acts like 9/11 under Islam. So if people want to oppose Park 51 and Feisal on the basis of this "60 Minutes" interview, they need to look for another basis.

One more post on Newt and the NYC mosque

2010-08-26T01:45:00.001-05:00

Overview

The last statements in Newt's essay I will expose as a steaming pile concern the name "Cordoba House." These statements are hypocritical, misinformed, and simply wrong.

Newt's fifth set of bullshit statements

Here's what Newt had to say about the name "Cordoba House:"

The proposed "Cordoba House" overlooking the World Trade Center site – where a group of jihadists killed over 3000 Americans and destroyed one of our most famous landmarks - is a test of the timidity, passivity and historic ignorance of American elites. For example, most of them don’t understand that “Cordoba House” is a deliberately insulting term. It refers to Cordoba, Spain – the capital of Muslim conquerors who symbolized their victory over the Christian Spaniards by transforming a church there into the world’s third-largest mosque complex.

Today, some of the Mosque’s backers insist this term is being used to "symbolize interfaith cooperation" when, in fact, every Islamist in the world recognizes Cordoba as a symbol of Islamic conquest. It is a sign of their contempt for Americans and their confidence in our historic ignorance that they would deliberately insult us this way.

Newt wrote another rant about the NYC mosque, and I need to include a passage from that.

The true intentions of Rauf are also revealed by the name initially proposed for the Ground Zero mosque—“Cordoba House”—which is named for a city in Spain where a conquering Muslim army replaced a church with a mosque. This name is a very direct historical indication that the Ground Zero mosque is all about conquest and thus an assertion of Islamist triumphalism which we should not tolerate.

We have lots of ground to cover, so buckle up, boys and girls.

Hello, pot. Meet kettle.

I guess Newt would consider me ignorant. Well, to some extent, that was an accurate assessment last week. Like Newt, I also have a degree in history, but my college studies focused on American, Greek, Roman, and Russian history. In the years since, I have done some study in areas of Muslim history, but that dealt largely with the Crusades. I really did not know much about the history of Cordoba.

I have now done some research about Cordoba, which necessarily required me to do research into related topics. Thus, I am at worst much less ignorant now than I was last week. I will say that my research and my writing in this post are in no way definitive or conclusive or necessarily accurate. However, based on what I found and what Newt wrote--and did not write--in his diatribe, there is a greater than zero chance that Newt is the ignorant one.

So let's take another look at Newt's statements in light of some history.

Conquering army replaced church with a mosque

It is true that an invading Muslim army captured the city of Cordoba (also known as Cordova) shortly after invading Spain in 711. Newt makes it sound like as soon as the Muslims took Cordoba, they converted the Christian church and soon made it the third largest mosque in the world.

That is not what happened.

According to this source, when Cordoba fell to the Muslims, "One of the conditions of the surrender of the city was that the Christians should be allowed to retain the exclusive use of their churches. The Moors, however, took possession of half the church of San Vicente[.]" Thereafter, the two faiths shared the building. Then in 785, the Muslim ruler of Cordoba, Abd-er-Rahman, bought the half of the property belonging to the Christians. It was soon after that construction of the Great Mosque of Cordoba began. [NOTE: Every source I found on the internet said that the Muslims purchased the property in or around 785.] The Christians then rebuilt their church on the outskirts of the city. [NOTE: The source for the rebuilding is a travel brochure, so make of that what you will.]

So the information I have found shows that the church was not destroyed when the Muslims took over Cordoba, Muslims shared the building with Christians until 785, then paid the Christians money for their half of the building, and allowed the Christians to build another church.

Construction on the mosque began in 786, but it took almost 200 more years before construction and expansion of the mosque was completed. So the mosque did not become the third largest in the world quickly.

All of this negates the impression given by Newt that the evil invaders came in, immediately desecrated a Christian site, and then destroyed it and replaced it with a huge mosque.

But why would Newt--the man with multiple history degrees--leave out all this history? He left it out (assuming he knew it at all) because it would run counter to his obvious objective of portraying Cordoba, and thus Park 51, as an example of religious intolerance. What a douchebag.

Another reason Newt did not mention all this history is that it counters his claim that Cordoba is a symbol of Islamic conquest and thus the name "Cordoba House" is an insult. That discussion is next...

Cordoba as a symbol of Islamic conquest and triumphalism

Once again Newt ignores history. Not only that, but he provides no history to support his bold claims. And that's because the actual history puts a big dent in his claims.

Some characteristics of Muslim rule under the Umayyad caliphate

At the time of the Muslim conquest of Spain (711), the Muslim empire was ruled by the Umayyad Dynasty, which formed the Umayyad caliphate (a "caliphate" was the state/governmental structure). The capital of the Umayyad caliphate was Damascus, Syria.

A caliphate's leader is the caliph. One definition of "caliph" is "the title of the successors of Mohammed as rulers of the Islamic world[.]" There could be only one caliph. Some of the rulers that were below the caliph on the organizational chart were emirs. Emirs would be similar to provincial governors in the Roman empire. From 711 to 929, Muslim Spain was an emirate, not a cliphate, meaning that until 929, the rulers of Spain were emirs, not caliphs.

The Umayyad caliphate came to an end in 750 when the Abbasids drove the Umayyads out of the Middle East and moved the capital to Baghdad. Only one member of the Umayyad Dynasty, Abd-er-Rahman, escaped this coup. He eventually went to Muslim-controlled Spain, known as al-Andalus, and in 756 he became the emir of al-Andalus and made Cordoba his capital. So began the Umayyad dynasty that would rule al-Andalus for almost 300 years.

It is important to note that the Umayyads had become very unpopular among many Muslims. As you read what follows, keep in mind that it was the Umayyads who ruled when the Muslims conquered Spain and it was the Umayyads who subsequently ruled in Cordoba. A major reason for the dislike was that many felt the Umayyads were too secular. As stated in this discussion of the Umayyads on the website IslamiCity.com,

With the advent of the Umayyads, how ever, secular concerns and the problems inherent in the administration of what, by then, was a large empire began to dominate the attention of the caliphs, often at the expense of religious concerns - a development that disturbed many devout Muslims. This is not to say that religious values were ignored; on the contrary, they grew in strength for centuries. But they were not always at the forefront and from the time of Mu'awiyah the caliph's role as "Defender of the Faith" increasingly required him to devote attention to the purely secular concerns which dominate so much of every nation's history.
*******
[T]he Umayyads, during the ninety years of their leadership, rarely shook off their empire's reputation as a mulk - that is, a worldly kingdom[.]

This attention to the secular was described as follows in an online Encyclopedia of the Middle East:

It is probably impossible to judge the Umayyad rule objectively because they had angered both the Ulema, the religious scholars who kept most of the records and made religious decisions, and the non-Arabs. Their story is told mostly through the voice of the Abbasids who overthrew them. They were despised for a long time by both by Sunni and Shia Muslims because they allegedly suppressed the Caliphate as a religious institution and ruled in effect as secular kings.

So, the Umayyads were not as religious as many thought they should be, and many thought that the Umayyads in fact suppressed religious matters while paying too much attention to secular matters. Hmmm...Does that sound like rulers that would be favored by today's Islamic radicals/extremists/fundamentalists?

Today's Islamic radicals/extremists/fundamentalists probably wouldn't approve of these things done by the Umayyads.

Muawiyah (the first Umayyad caliph) cultivated the goodwill of Christian Syrians by recruiting them for the army at double pay, by appointing Christians to many high offices, and by appointing his son by his Christian wife as his successor. His sensitivity to human behavior accounted in great part for his political success.
*******
In the administration of law, the Umayyads followed the traditions set by the Hellenistic monarchies and the Roman Empire. The conqueror's law--in this case Muslim law (sharia)-- applied only to those of the same faith or nationality as the conquerors. For non-Muslims, civil law was the law of their particular millet (separate religious community, also called milla); religious leaders administered the law of the millet. This system prevailed throughout Islam[.]

(emphasis added). I am not claiming that non-Muslims had total freedom or that life for them was perfect under Muslim rule, but the above excerpt shows that there was a degree of tolerance and freedom that I submit has not been and would not be allowed by "Newt's Islamists"--the people that are today's radicals/extremists/fundamentalists.

The point of this discussion of the Umayyads is that radical/extremist/fundamentalist groups like Al Quaeda, the Taliban, the Wahhabis, and others would like dislike the Umayyads and what they did and how they did it. Since Cordoba was conquered and then ruled by the Umayyads, I have a problem seeing how today's Islamic radicals/extremists/fundamentalists would embrace Cordoba as a symbol of Islamic conquest.

And more history raises more reasons why Cordoba would not serve as such a symbol.

Conditions in Cordoba under Muslim rule

What actually took place in Cordoba under Umayyad rule provides further evidence that today's radicals/extremists/fundamentalists would not tout Cordoba as a universal symbol for their cause. Check out this excerpt from a paper by Dean Derhak entitled "Muslim Spain and European Culture:"

In his book titled, "Spain In The Modern World," James Cleuge explains the significance of Cordova in Medieval Europe:
"For there was nothing like it, at that epoch, in the rest of Europe. The best minds in that continent looked to Spain for everything which most clearly differentiates a human being from a tiger." (Cleugh, 1953, p. 70)
During the end of the first millennium, Cordova was the intellectual well from which European humanity came to drink. Students from France and England traveled there to sit at the feet of Muslim, Christian and Jewish scholars, to learn philosophy, science and medicine (Digest, 1973, p. 622). In the great library of Cordova alone, there were some 600,000 manuscripts (Burke, 1978, p. 122).

This rich and sophisticated society took a tolerant view towards other faiths. Tolerance was unheard of in the rest of Europe. But in Moorish Spain, "thousands of Jews and Christians lived in peace and harmony with their Muslim overlords." (Burke, 1985, p. 38) The society had a literary rather than religious base. Economically their prosperity was unparalleled for centuries. The aristocracy promoted private land ownership and encouraged Jews in banking. There was little or no Muslim prostelyting. Instead, non-believers simply paid an extra tax!

"Their society had become too sophisticated to be fanatical. Christians and Moslems, with Jews as their intermediaries and interpreters, lived side by side and fought, not each other, but other mixed communities." (Cleugh, 1953, p. 71)

[NOTE: All the sources cited by Derhak are listed at the end of his paper.] And then there's this description of Cordoba:

Nearing the end of the 1st Millennium, Cordoba was the intellectual center of Europe. Students from all over Europe came to be taught by Arab, Christian, and Jewish scholars in the great Library of Cordoba, which held over 600,000 manuscripts. The rich and complex society had a tolerant view of other faiths. Jews, Christians, and Muslims lived together in harmony, and the society had a literary base. Private land ownership was encouraged, as well as banking among Jews. Non-believers in the Muslim faith were simply levied a special tax.

Instead of being the center of all Muslim oppression and intolerance--like Newt would have you believe--it turns out that Cordoba allowed multiple faiths and was a leading center of learning, not just for Muslims, but Jews and Christians as well. And Jews and Christians were allowed to own property. In short, the Umayyad rulers of Cordoba were similar to the Umayyads that once held the caliphate, and, for the times, Cordoba was a tolerant and open society.

And once again, I point out that these circumstances would not meet the approval of today's Islamic radicals/extremists/fundamentalists, and that provides more support for my argument that they would not view Cordoba as a symbol of Islamic conquest.

NOTE: Life in Cordoba for non-Muslims apparently was not totally free. There were limitations and restrictions in addition to the tax mentioned above. See the next-to-last paragraph on page 4 of this paper.

Orientation of the mosque and declaration of a caliphate of Cordoba

There are yet more historical facts which shoot holes in Newt's unsubstantiated, half-assed idea that "every Islamist in the world recognizes Cordoba as a symbol of Islamic conquest."

The first of these is the orientation of the mosque of Cordoba. All mosques are supposed to be oriented on an east-west axis so that worshippers can always face Mecca when praying. However, this was not done with the mosque at Cordoba. From Medieval Iberia: an encyclopedia (p. 586):

The mosque’s orientation is incorrect, which is only partly explained by the orientation of the former church. Instead of facing Mecca (east), as would be expected, it faces south, adopting the orientation of the Umayyad mosque of Damascus; politicideological allegiances with the Umayyad and Syrian past, expressed in this manner, proved more important than correct direction of prayer.

Stated differently, the north-south orientation of the mosque seems to have been intended as paying homage to Umayyad caliphate which was overthrown in part because of its moderate and tolerant ways. Also, it would seem to be a denial of the primacy of Mecca. Why would present-day Islamists then consider the Cordoba mosque as a symbol of triumph over Christianity and the West?

In 929, the ruler of Spain, Abd al-Rahman III, declared himself caliph and established what was known as the caliphate of Cordoba. Why is that significant? Recall the earlier description of emirs and caliphs. There could be only one caliph for all of Islam. During the Umayyad rule of Spain, the caliphate was controlled by Abbasid Dynasty, located in Baghdad. As noted in Medieval Iberia: an encyclopedia (pp. 257-258), Abd al-Rahman III "thus server[ed] Muslim Spain, politically and religiously, from the rest of Islam." Stated differently, Abd al-Rahman III openly broke away from and defied the rest of Islam. Because of that, I really do not see how "every Islamist in the world recognizes Cordoba as a symbol of Islamic conquest."

Conclusion

The historical facts and analysis presented above support a strong argument that Cordoba in not recognized by Muslims (be they Islamists or not) as an example and symbol of Muslim conquest and triumphalism. I would gladly respond to Newt's historical basis for his statement to the contrary, but he does not bother to include any such basis. Instead, as he usually does, he simply makes inflammatory statements and expects everyone to believe them because he's the almighty Newt.

The history that I found indicates that Cordoba was the opposite of what Newt expressly and impliedly claims. The history I found indicates that Cordoba was tolerant of other faiths, a relatively open society, and a great intellectual center of learning for Muslims and non-Muslims. Thus, history tends to show that Cordoba was not and is not now a symbol of Muslim conquest, oppression, or triumph. History also shows that initially naming the proposed Muslim community center and mosque in NYC "Cordoba House" was not and is not an insult to anyone except Islamic extremists.

Simply put, history shows that Newt is wrong.

Ron Paul on the NYC mosque

2010-08-23T23:42:00.000-05:00

Three days ago, Ron Paul made very clear his opinion on the NYC mosque in a post on his website entitled "Ron Paul to Sunshine Patriots: Stop Your Demagogy on the NYC Mosque!" I encourage everyone to read that post. His analysis is unflinching and at times scathing.

And I have to say I agree with most of it. Consequently, I see no need to discuss it at length in this post. Instead, I would prefer people to go to Paul's site and read his post.

I will, however, quote one statement which shares something with my bottom line view. Recall that I said in my first post on this subject that

My opinion is based on the First Amendment and the right of religious freedom in this country. Any other basis for any position on this matter is, in my opinion, misguided.

Paul's statement I will quote here is based on the concept of property rights rather that the First Amendment freedom of religion, but the last half of his statement is exactly how I feel about defending freedom of religion in this case. Here is Paul's statement:

Defending the controversial use of property should be no more difficult than defending the 1st Amendment principle of defending controversial speech.

Go read Paul's post.

More on Newt and the NYC mosque

2010-08-23T23:17:00.000-05:00

Overview

This post will continue examination (and shredding) of an "essay" Newt posted about the proposed Muslim community center and mosque near Ground Zero. Specifically, I will show that Newt's assertions about religious tolerance are meaningless, ignorant, and that what he wants has pretty much already been happening.

Newt's fourth set of bullshit statements

Among other things, these statements once again show that Newt is trying to tie religious freedom in America with religious freedom in Saudi Arabia.

I first need to discuss the name of the project. The name for the overall project was initially "Cordoba House." This is something else Newt rails about, and I will discuss that in another post. The name of the overall project has been changed to "Park 51." When I first checked out the Park 51 website, I had the impression that the mosque would be operated as a separate entity and would be called "Cordoba House." As of today (August 23) the website says that the mosque has "yet to be named." However, there are other portions of the website that expressly refer to "Cordoba House," which causes some confusion (which will be briefly addressed in a subsequent section). In any event, the website does make it clear that the mosque will be a separately run non-profit.

With that in mind, here's what Newt said right after his third bullshit statement:

If the people behind the Cordoba House were serious about religious toleration, they would be imploring the Saudis, as fellow Muslims, to immediately open up Mecca to all and immediately announce their intention to allow non-Muslim houses of worship in the Kingdom. They should be asked by the news media if they would be willing to lead such a campaign.

Newt's statements about toleration are as worthless as his other statements.

As I discussed in the previous post, any efforts to get Saudi Arabia to permit any religion other than Islam are pointless. You know, Newt has undergraduate, master's, and PhD degrees in history, so one would think that he could have availed himself of the history of Saudi Arabia and the Wahhabis, meaning that he would have had sense enough not to make these ridiculous statements about Saudi Arabia allowing non-Muslim houses of worship. Apparently, he was too lazy to do even a little bit of research.

Anyway, here is another example of Newt trying to make American religious freedom in some way dependent on religious freedom in Saudi Arabia. That is truly stupid since we already have religious freedom under our American constitution.

Newt is so damn clueless.

I considered titling this section after a famous running bit from Dan Ackroyd on SNL back in the day...Anyhoo...

Newt's statements are utterly ignorant. The statements utterly fail to take into account the fact that there are different sects within Islam. Most people now are aware of the two main sects, Sunni and Shia. What they might not know is that there are sects within those sects. For purposes of this post, I will repeat something I said earlier, namely that one of the Sunni sects is Wahhabism, which is an extremely fundamentalist and rigid form of Sunni Islam. Another rigid and fundamentalist Sunni sect is Salafism. There is a similarity and relation between Salafism and Wahhabism, but I feel I do not know enough to elaborate on that. However, I think it is safe to say that these two sects dominate in Saudi Arabia, meaning that Saudi Arabia is not inclined to do anything that anyone or any group suggests that varies from them in any way. Which brings me to a third major sect within Islam, the Sufis.

Rudimentary (at best) description of Sufism

Here is a synopsis of Sufis based on my own study over the years. The Sufis are the poets and mystics of Islam. Sufis are moderates. Sufis are non-violent. Sufis are not dogmatic. Sufis are tolerant of other religions. Indeed, Sufis are open to seeking knowledge and understanding from other religions. Because of these characteristics, Sufis are disliked and criticized by some other Muslims (notably hardliners like Salafis, Wahhabis, and the Taliban). Sufis have been and still are persecuted by some other Muslims.

Now here's some descriptions of Sufis for the wingers out there. These descriptions were written by Stephen Schwartz and appeared in The Weekly Standard, one of the mainstays of the right wing media. The first description comes from "Getting to Know the Sufis," published in February 2005:

Where the Wahhabis insist that there is only one, monolithic, authentic Islam (theirs), the Sufis express their faith through hundreds of different orders and communities around the globe, none pretending to an exclusive hold on truth. Sufis may be either Sunni or Shia; some would claim to have transcended the difference. Throughout its 1,200-year history, Sufism has rested on a spiritual foundation of love for the creator and creation, which implies the cultivation of mercy and compassion toward all human beings. These principles are expressed in esoteric teachings imparted through formal instruction.
*******
The history of Sufism is filled with examples of interfaith fusion, in contrast with the rigid separatism of the Islamic fundamentalists. Balkan and Turkish Sufis share holy sites with Christians. Central Asian Sufis preserve traditions inherited from shamans and Buddhists. Sufis in French-speaking West Africa adapt local customs, and those in Eastern Turkestan borrow from Chinese traditions such as Confucianism and Taoism, as well as martial arts. In the Balkans, Turkey, and Central Asia, Sufis have accepted secularism as a bulwark against religious intolerance and the monopolization of religious opinion by clerics.

In an August 9, 2010, blog post, Schwartz and Irfan al-Alawi described the the persecution suffered by Sufis. The post began by describing the July 1, 2010, terrorist attack on a Sufi shrine in Pakistan which killed 45 and injured 175 and went on to describe other violent attacks on Sufis the last few years. Regarding the July bombing, the writers stated

The slayings have been blamed on al Qaeda and its Taliban allies.

As adherents to Saudi-financed Wahhabism and the similar South Asian Deobandi form of Muslim fundamentalism, the terrorists have long proclaimed their hatred of the Sufis[.]

And why am I discussing Sufis? Two reasons: 1) Sufis are not radical extremists. The radical Islamic extremists basically despise the Sufis. 2) The Muslims seeking to build and use Park 51 and Cordoba House are Sufis.

Newt's ignorant, broad statements fail to reflect any of these facts. His statements at the least imply that all Muslims (and all Muslim sects) come within the purview of "These Islamists" that he contends are trying to make America submit. Forcing people to submit is definitely not the Sufi way, and if Newt would bother to do even a little bit of study about Sufism, he would know that.

Sufi efforts to promote religious tolerance in the Middle East

Newt and his apologists surely would argue that everything I described indicates that Sufis are indeed the group that should lead a campaign for religious freedom in Saudi Arabia. Well, Sufis are taking some steps to counter rigid religious fundamentalism in the Middle East. To be honest, this is a subject of which I knew nothing before doing research for this post, and based on what I have found, I cannot at this time adequately address the topic. Nonetheless, I will point out a portion of Sufi efforts in this regard.

Sufis in the Middle East are establishing satellite television channels to reach Sufi audiences and teach others about Sufism. As stated in this January 27, 2010, article,

A coalition of Sufi organisations is preparing to launch Egypt’s first Sufi-themed satellite television station before the end of the year.

The channel’s principal organisers, the Al Azmiyah tariqah, or “path”, said the station would be the fourth in the Middle East to identify specifically with Sufi Islamic thought.

Ala’ Abu al Azayim, the sheikh of the Al Azmiyah tariqah, said he hoped the station, which he plans to name Al Sufiya Wa Atasawaf (Sufis and Sufism), will help propagate Sufism’s moderate conception of Islam.

But he also envisions it as an ideological foil to the dozens of conservative Salafi satellite channels that compete for viewers across the region – stations that Mr al Azayim said routinely attack Sufi thought, pollute the practice of Islam with an ultra-conservative ideology and defame the religion’s reputation throughout the world.

The article also points out that many of the Salafi satellite channels are Saudi-funded. And, according to this article, another Sufi satellite channel is being funded by Saudi businessmen. Notice that this second article is very dismissive and critical of Sufism, exemplified by the author's statement that " In fact I pity the forthcoming Sufi channel[.]"

As shown above, Sufis already practice religious tolerance and respect for other faiths AND they are engaging in activities to counter the efforts of extreme fundamentalism--even in Saudi Arabia. In other words, Sufis are already doing the things that Newt thinks they are not and must do before Americans should show them any tolerance.

Sufi efforts to promote religious tolerance via Park 51

Now I want to focus on what we might expect from Park 51 and Cordoba House.

The Park 51 website describes the project's Vision as follows:

Park51 will be dedicated to pluralism, service, arts and culture, education and empowerment, appreciation for our city and a deep respect for our planet. Park51 will join New York to the world, offering a welcoming community center with multiple points of entry.

With world-class facilities, a global scope and strong local roots, Park 51 will offer a friendly and accessible platform for conversations across our identities.

As for the mosque, Park 51 says that it will be "open to and accessible to all members, visitors and our New York community." Another portion of the website says "Intended to operate as a separate 501(c)(3), the mosque will be a welcoming prayer space accessible to Park51 members as well as all New Yorkers." (emphasis added). Thus, it appears that the mosque will be open to non-Muslims. That certainly seems religiously tolerant to me.

It also seems clear that the rest of Park 51 will be open to all people. Park 51's Mission statement includes the following:

Uphold respect for the diversity of expression and ideas between all people
Cultivate and embrace neighborly relations between all New Yorkers, fostering a spirit of civic participation and an awareness of common needs and opportunities
Encourage open discussion and dialogue on issues of relevance to New Yorkers, Americans and the international reality of our interconnected planet

Elsewhere on the website it is stated that

At a time of economic hardship, Park51 will constitute an investment of over $100 million of infrastructure in lower Manhattan, creating over 150 full-time jobs and over 500 part-time jobs, and providing much needed space, open to all, for community activities, health and wellness, arts and culture and personal and professional development.

(emphasis added). Also, Park 51 will have a 23-member board of directors, and "The Board will not be limited by religion or region."

Moreover, in accordance with what I said above about Sufis being open to other religions, "Cordoba House, under the direction of Imam Feisal Abdul-Rauf, will represent a multifaith programming cluster within Park51." What the website does not make clear is whether "Cordoba House" will be an actual entity or facility within Park 51. Specifically, it is still not clear to me whether the mosque is going to be called "Cordoba House." In any event, it appears that multifaith activities are going to be part of Park 51.

In short, Park 51 has declared that it will be open to all people, regardless of religion, and will have programs and activities that allow ideas and beliefs of other religions to be expressed therein.

Maybe that's not good enough for Newt, but it if Park 51 carries through on its declarations, the facility will certainly exemplify religious tolerance.

Sufi efforts to promote religious tolerance via the Imam of Park 51

The Imam (spiritual leader and teacher) of Park 51 will be Imam Feisal Abdul Rauf. There is currently plenty of info about him on the internet, but I will provide links to three bios: Wikipedia; the Cordoba Initiative; and the American Society for Muslim Advancement. The Wikipedia page presents some of the criticisms of Rauf. He has addressed some of those criticisms (and others specifically related to Park 51) in a FAQ page on the Cordoba Initiative website. I am not going to discuss those criticisms here, but will do so in a subsequent post.

What I want to focus on in this post is Rauf's past efforts regarding religious tolerance. This post at TPM Muckraker provides a nice summary of Rauf's work with the Bush administration (that's right, Bush) to promote religious tolerance in the Middle East and at home. What I find most interesting is that when Bush was President, there were no complaints about Rauf being some sort of radical or Islamic extremist, yet now that is exactly what opponents of Park 51 are calling him.

NOTE: Stephen Schwartz wrote an August 4, 2010, article examing Rauf's possible ties to people who might be considered radicals. In my opinion, the article does little to show that Rauf is a radical in contravention to what his work described herein shows. However, in the interest of fairness, I felt I should mention and link to Schwartz's article.

Rauf has also promoted religious tolerance in this country, and part of his efforts have occurred through his position of Imam of Masjid Al-Farah, the mosque which is about 12 blocks from Ground Zero. I will share two accounts from people who have participated in activities with Rauf while he has been the Imam of Masjid Al-Farah. The first account comes from an August 19, 2010, column by Brad Gooch, a contributor to The Daily Beast:

I first met Feisal Rauf in the spring of 2000, while working on my book Godtalk: Travels in Spiritual America. I wished to write a chapter on Islam in New York City, and a friend took me to a lecture Feisal was giving on his new book, Islam: A Sacred Law, subtitled What Every Muslim Should Know About Shariah. (I learned that night what many screaming heads have not yet—there are different schools of Islamic law, as there are denominations in Christianity, and Feisal is part of an extremely liberal one.) The event was in the basement of a (since vanished) Sufi bookstore on West Broadway. Next door was the Masjid Al-Farah, where I began to attend his Friday talks...I interviewed Feisal at a nearby café. Eventually, he invited me to attend a meditation group in Sufism—the mystical branch of Islam—he led Friday nights at the Upper West Side apartment he shared with his wife Daisy Khan. I frequented the group over four months.
*******
His weekly prayer group was a Noah’s ark (the Koran has Noah, too), including the grandson of a Syrian president; a Jewish librarian; a Roman Catholic Latina; an African-American radio commentator.

This shows that Rauf has opened his door to non-Muslims in this country. The second account is a comment to a post on the Huffington Post:

I have been to the mosque many times. It is a supremely peaceful place attended by loving, introspective people only. There is no anti-Christian, anti-American, or hateful talk or activity of any kind going on there, only loving devotion and spirituality. Men and women of all nationalities pray there side by side. In addition, the mosque and associated buildings have often been host to spiritual teachers, artists, musicians, and other presenters from many traditions including Christianity, Judaism, Buddhism, Hinduism, and more.

Truth be told, the Masjid Al-Farah is the kind of mosque that radical Islamists and all zealots -- religious or otherwise -- hate, because it is a place that promotes love, pluralism and tolerance. So it is my opinion, based on first-hand experience of this Imam his previous position, that the building of Cordoba House--if it is to be anything like Masjid Al-Farah--is something that stands in direct opposition to terrorism and Islamist radicalism.

What more needs to be said?

Conclusion

Newt's statements continue his position that "until Saudi Arabia has religious freedom, America is going to restrict its religious freedom." And thus he continues to be a douchebag.

His statements display an abject ignorance of history and the doctrinal differences within Islam. He is also ignorant of the fact that the Muslims seeking to build Park 51 are Sufis, and he shows that he knows nothing about Sufis.

The declarations of Park 51 and the actions of Sufis in general and Imam Rauf in particular show that they are indeed already working for religious tolerance.

In short, Newt's fourth set of statements is complete bullshit.

Newt Gingrich on the NYC mosque

2010-08-21T22:17:00.010-05:00

Overview

Just as I was updating my previous criticism of Newt, I discovered that he had said more things for which he deserves criticism, and that would be what he has said about the Muslim community center and mosque scheduled to be built a few blocks from Ground Zero in New York City.

I will have plenty to say about that general topic in the next few days, but what I will say next will give you a good idea of my views...Newt Gingrich is so full of shit. His statements about the Muslim community center and mosque are complete bullshit and show what a bombastic, self-serving douchebag he is.

Too strong to start? Well, too bad.

This will be the first of three posts on Newt's dumbass statements on this matter.

Newt's first bullshit statement

Let's start with this gem from Newt:

There should be no mosque near ground zero in New York so long as there are no churches or synagogues in Saudi Arabia.

Where to start? There are no churches or synagogues in Saudi Arabia. And here's why:

The Kingdom of Saudi Arabia is an Islamic theocratic monarchy in which Islam is the official religion. Although no law requires citizens or passport holders to be Muslim, almost all citizens are Muslims. Proselytizing by non-Muslims is illegal, and conversion by Muslims to another religion (apostasy) carries the death penalty, although there have been no confirmed reports of executions for apostasy in recent years.

In other words, "Religious freedom [in Saudi Arabia] is virtually non-existent." And that is not going to change. You see, the ruling family in that Islamic theocracy, the House of Saud, has long had a more than close relationship to the Wahhabis, the extremely fundamentalist Sunni Islamic sect. As stated in this Frontline timeline,

1744--The Holy Alliance

Muhammad ibn Abd al-Wahhab, founder of "Wahhabism," an austere form of Islam, arrives in the central Arabian state of Najd in 1744 preaching a return to "pure" Islam. He seeks protection from the local emir, Muhammad ibn Saud, head of the Al Saud tribal family, and they cut a deal. The Al Saud will endorse al-Wahhab's austere form of Islam and in return, the Al Saud will get political legitimacy and regular tithes from al-Wahhab's followers. The religious-political alliance that al-Wahhab and Saud forge endures to this day in Saudi Arabia.

By the 19th century, the Al Saud has spread its influence across the Arabian Peninsula, stretching from the Red Sea to the Persian Gulf and including the Two Holy Cities of Mecca and Medina. But in 1818, forces of the Ottoman Empire sack the capital, Riyadh, and execute many of the religious and political leaders. Over the next eighty years the Al Saud attempt to reestablish their rule on the Arabian Peninsula without success.

1902--Abd al-Aziz and the Ikhwan

In 1902, a direct descendent of Muhammad ibn Saud, twenty-year-old Abd al-Aziz ibn Saud, rides out of the desert with 60 of his brothers and cousins to restore the rule of Al Saud. He captures Riyadh, the ancient capital of the Saudi kingdom, but to conquer all of the Arabian Peninsula, he seeks the help of nomadic Bedouins, the Ikhwan, or Muslim brothers. Renowned warriors, the Ikhwan are also fervent Wahhabi Islamic puritans who want to spread their form of Islam throughout the Middle East.

1924-25--Abd al-Aziz Captures Mecca and Medina, Crushes the Ikhwan

With the Ikhwan by his side, Abd al-Aziz captures province after province of the vast desert. He captures Mecca in 1924 and Medina in 1925, becoming the ruler of the Two Holy Cities of Islam.

*******

1932--The Kingdom of Saudi Arabia

Abd al-Aziz ibn Saud declares himself king and gives his name to the country: Saudi Arabia.

In other words, the House of Saud gained power and created the Kingdom of Saudi Arabia because of the alliance with and assistance of Wahhabis. And that alliance continues today. Put another way, if the House of Saud were to try to end this alliance, the House of Saud would likely no longer rule. The Wahhabis will never want other religions in Saudi Arabia, and that means the House of Saud will never want other religions in Saudi Arabia. Freedom of religion is not going to exist in Saudi Arabia.

Consequently, Gingrich's statements are utterly meaningless.

Even if there was any possibility of religious freedom of religion in Saudi Arabia, Newt's statement would not do anything to help cause that. You see, there are already lots of mosques all over America (due to the fact that we already have freedom of religion). So why would the House of Saud want to end its autocratic grip on religion just so one, and only one, more mosque could be built in America? That makes no sense whatsoever.

And there is another reason why Newt's statement makes no sense. Essentially he is saying "O.K., Saudi Arabia. Until you have some religious freedom, we are going to restrict our freedom of religion."

What a douchebag.

Newt's second bullshit statement

Right after his first bullshit statement Newt said this:

The time for double standards that allow Islamists to behave aggressively toward us while they demand our weakness and submission is over.

I'll say it again: We already have freedom of religion. That means that any religion in this country can make just about any kind of demands it wants. It does NOT, however, mean that we as a country have to submit to those demands. For instance, one religion could demand that we as a country restrict our freedom of religion. I doubt seriously that we as a nation would submit to such a demand. I'm not so sure about Newt. After all, as shown above, he has already shown that he is willing to restrict freedom of religion in the case of the Muslim community center and mosque near Ground Zero. One could make the argument that it seems that Newt is implying that we as Americans are not strong enough to stand up to demands from specific religions. Oh why does Newt hate America by thinking we are weak?

Newt is the one using a double standard here. By tying his "double standard" claim to the Muslim community center and mosque, he is saying that America has freedom of religion--but that the group of Muslims who want to build the community center and mosque do not have complete religious freedom. So, Newt is saying there is one standard for everyone in America--except these Muslims in New York City.

Again, what a douchebag.

Newt's third bullshit statement

From the same screed:

Those Islamists and their apologists who argue for "religious toleration" are arrogantly dishonest. They ignore the fact that more than 100 mosques already exist in New York City. Meanwhile, there are no churches or synagogues in all of Saudi Arabia. In fact no Christian or Jew can even enter Mecca.

(emphasis in original). Newt is basically right on the facts. There are numerous mosques in NYC (in fact there is one just a few blocks from Ground Zero). And non-Muslims are not allowed to enter Mecca.

And those facts have absolutely NO bearing on freedom of religion in THIS country. Again, we already have freedom of religion here. What does or does not happen in Saudi Arabia does NOT change that fact. Thus, for Newt's statement to make any sense at all, his term "Those Islamists" would have to apply to the Muslims in New York City that are seeking to build and use the proposed community center and mosque. I'd wager that many of those people are not Saudis but rather Muslim-Americans. And as Muslim-Americans, they are guaranteed freedom of religion because that's the way we roll in America. The lives and rights of Muslim-Americans are not determined by the House of Saud or Wahhabis. They are determined by American laws and the American Constitution.

Let me put this another way. The issue is not religious toleration around the world. The issue is religious toleration in THIS country. And THIS country is the ONLY country to determine that issue. What happens in Saudi Arabia is irrelevant to the right of Americans to religious freedom. Apparently Newt thinks that actions by other countries should have some influence on what we do here.

Again, what a douchebag.

As I said in my previous post, this whole matter is really about the First Amendment and American freedom of religion. Newt's statements focus on circumstances in another country which cannot possibly have an effect on our Constitutional rights. Newt's statements do not support the First Amendment right of religious freedom--his statements seek to limit that freedom by suggesting that it is dependent in some way on foreign countries and by utilizing a double standard.

And I'm just getting started on Newtie...

The so-called "Ground Zero mosque"

2010-08-21T19:17:00.000-05:00

I will be publishing several posts on this matter, and before I do I thought I should give a summary of my views.

My opinion is based on the First Amendment and the right of religious freedom in this country. Any other basis for any position on this matter is, in my opinion, misguided.

The group seeking to build the proposed Muslim community center and mosque should be allowed to proceed with the project.

This does not mean that I am in total agreement with that group. Personally, based on my view of the First Amendment and my beliefs in general, I have no problem with the project or its location. However, I believe the group should have chosen a different location. I believe that their stated goal of outreach and bridging gaps between religions is truly one of their goals, but the group seems to have underestimated the intensity of reaction to the location. Such reaction--which was very foreseeable--only gives the group an additional major obstacle to overcome in achieving its goal. Its task would be difficult under the best of circumstances, and instead of trying to avoid complicating circumstances, it chose to create one.

That basic reaction--that the project is simply too close to Ground Zero--is, in my opinion, understandable and legitimate. However, the freedom of religion in America established by the First Amendment should take priority over that reaction. Otherwise, one of the foundations upon which this country has been built will be damaged, and that damage could increase.

I am in strong disagreement with the likes of Newt Gingrich, Sarah Palin, and those that have similar views.

I will be stating my own views in the next series of posts. I will begin with my reaction to the rantings of Newt Gingrich.

Newt Gingrich--what a swell guy! (revisited)

2010-08-17T13:34:00.000-05:00

Back in December 2006, I wrote a series of posts showing in detail that Newt Gingrich is anything but a swell guy. I should really be more direct...Newt Gingrich is a hypocritical jackass--among other things. Don't believe me? Go to the index for this blog, scroll down to "Gingrich, Newt," click on the links, and read for yourself.

So why revisit this subject now? Well, Newt seems to be once again contemplating a White House run, so anything discussing his utter lack of character and integrity is relevant. Also, some new information became public this week in the form of a profile in the September issue of Esquire magazine. That profile includes information I did not have when I wrote my series, a fact that prompted me to go back and review my previous research, and all of that convinced me an update is warranted.

Family man revisited

Before we get to the updated material, let's do a quick review. If you want more details, then read this post. In the meantime, here is the Readers Digest version:

Wife #1, Jackie, was married to Newt for about 18.5 years. He had numerous affairs while married to Jackie. He walked out on her in the spring of 1980. Then, as she was in the hospital recovering from cancer surgery, Newt went into her room and insisted on discussing the terms of their pending divorce (for which he filed).
One of the affairs was with the woman who became Wife #2, Marianne. They got married six months after Newt's divorce from Jackie was final. This marriage lasted 18 years, but during the last 6, Newt was having an affair with the woman who would become Wife #3. Newt told Marianne he wanted a divorce via telephone while she was visiting her mother.

In my previous post, I included many more sordid details, and back then I didn't think there could be any more information that would make Newt look like an even bigger ass.

I was wrong.

And before any Newt apologists get cranked up, I will point out that a good deal of this new information comes from inside sources, most notably Jackie and Marianne. In addition to the Esquire profile (written by John H. Richardson), I will include some info from sources I previously used, especially a 1995 Vanity Fair article by Gail Sheehy.

Here's a timeline for the end of Newt's first marriage and the start of his second:

Newt met Marianne in January 1980.
Newt walked out on Jackie (and their two daughters) in April 1980.
Newt asked Marianne to marry him within weeks of meeting her.
Do the math--Newt proposed to Marianne while still married to Jackie.
Jackie, who was battling uterine cancer, had her third surgery in September 1980. The day after her surgery Newt went into her hospital room and insisted on discussing the terms of divorce.
By October, Newt was refusing to pay alimony or child support. Jackie had to get a court order to get Newt to pay an electric bill.
The divorce from Jackie was finalized in February 1981.
Newt and Marianne got married six months later.

Now let's move on to the transition from Wife #2 to Wife #3, Callista Bisek. As noted above, Newt had an affair with Callista for the last six years of his marriage to Marianne.

It is true that Newt told Marianne he wanted a divorce over the phone, and I previously cited that as pretty much a douchebag move, but in the Esquire profile, Marianne reveals that when Newt called he asked that they talk in person, but Marianne insisted on talking over the phone right then. I did not know that previously. I also did not know that not long before that phone call, Marianne was diagnosed with multiple sclerosis. So I have to apologize to Newt for implying that he was a douchebag for the phone thing, but I get to call him a douchebag for telling his first two wives he wanted a divorce after they started fighting major illnesses.

And I get to call him a douchebag for asking Bisek to marry him before he had even told Marianne he wanted a divorce (just like he did in his first marriage).

And I get to call him an even bigger douchebag because of something else he did after he revealed his affair with Bisek. Newt Gingrich actually asked Marianne to tolerate the affair. Not only that, but he made that request when he returned from giving a speech praising compassion and family values! What a douchebag!

As described in Esquire,

The next night, they sat talking out on their back patio in Georgia. She said, "How do you give that speech and do what you're doing?"

I will discuss Newt's response later, but for now I will say Marianne's question highlights one of my biggest problems with Newt, namely that he is a huge hypocrite.

And Newt did some screwy things during the divorce proceedings. Here's the description from Esquire:

When they got to court, Gingrich refused to cooperate with basic discovery. Marianne and her lawyer knew from a Washington Post gossip column that Gingrich had bought Bisek a $450 bottle of wine, for example, but he refused to provide receipts or answer any other questions about their relationship.

Then Gingrich made a baffling move. Because Bisek had refused to be deposed by Marianne's attorney, Newt had his own attorney depose her, after which the attorney held a press conference and announced that she had confessed to a six-year affair with Gingrich.

In his first divorce, he refused to pay child support and had to be ordered by the court to pay the electric bill for his wife and children. In his second divorce, he refused to answer any questions about his six-year affair. So why would he depose her, then have a press conference to admit the 6-year affair? The reason was related to his request for Marianne's "tolerance." Since Marianne was not going to tolerate the affair, Newt was going to try to make it look like that's what she actually did. It turns out that Newt "had also told the press that he and Marianne had an understanding." Marianne flatly denied that to Esquire.

Now, I know what some of you are thinking...All of that bad behavior was in the past. There's no evidence that Newt has been engaging in such douchebaggery since he married Wife #3. I have to admit that. However, that does not mean Newt has left behind all of his past behavior. Part of what Newt's past shows is a callous disregard for women. The Esquire profile shows an example of this in the present day.

In the interview with Newt done for the profile, he twice mentioned being like a four-year old child:

"There's a large part of me that's four years old," he tells you. "I wake up in the morning and I know that somewhere there's a cookie. I don't know where it is but I know it's mine and I have to go find it. That's how I live my life.
*******
"Callista and I kid that I'm four and she's five and therefore she gets to be in charge, because the difference between four and five is a lot."

Here's what happened when Richardson told Marianne about these comments:

Her eyes go wide when she hears his line about being four to Callista's five. "You know where that line came from? Me. That's my line. That's what I told him."

She pauses for a moment, turning it over in her mind. Then she shakes her head in wonder. "I'm sorry, that's so freaky."

That's one way to describe it. "Pathetic" is another way. Being unfaithful to Marianne for at least six years wasn't enough. Asking her to tolerate the affair wasn't enough. Lying to the media that she knew about and was OK with the affair wasn't enough. Newt felt it was necessary to describe himself and his current wife with comments that came from Marianne to describe her marriage to Newt. What a douchebag.

Hypocrisy is his SOP.

Part 6 of my previous series showed that as of December 2006, hypocrisy was Newt's SOP (standard operating procedure). One of the examples I focused on was financing and fund raising. Part 6 was based to a degree on Part 2. Together those two posts discussed how Gingrich built his early career and success on attacking corruption caused by money and special interests and then engaged in the same conduct he was attacking. In an interview, Fred Wertheimer explained what Newt did before and after he became Speaker.

He attacked the House as a corrupt institution. He brought ethics charges. He constantly attacked the legitimacy of the institution. At the same time, he built a financial empire based on special interest and private influence money. He did everything he could to block the reforms, the serious reforms of the system that were undertaken. And now of course he's the king of this corrupt system.
*******
Somehow the same issue that had been central to Newt Gingrich's argument throughout his career in the minority--that this was a corrupt system, that PACs were a grotesque feature in the system, that money politics was driving out and defeating citizen politicians--somehow not a word about this was included in the Contract With America.

As shown in Parts 2 and 6, Wertheimer showed that 1) before he became Speaker, Gingrich tried to shut down the "soft money" and PACs; 2) during this time Gingrich was building a political machine fueled by soft money and PACs; and 3) once he became Speaker, he took steps to preserve the very system he had publicly condemned as corrupt.

Newt is basically doing the same thing now. The Esquire profile explains in detail how Gingrich is raising money. A primary way is through his "political advocacy group," American Solutions, which is a "527" organization. In the past, individual politicians have raised money through political action committees, or PACs. However, PACs are limited in terms of how much money they can accept from donors and they cannot take contributions from corporations. One objective of such restrictions is the prevention of special interests from unduly influencing a politician. 527 organizations face none of those restrictions. 527s can accept unlimited contributions from anywhere as long as the 527 does not promote a specific candidate.

Basically, Newt is able to raise unlimited amounts of cash through American Solutions and use that cash to advance his own interests. As Esquire put it, "American Solutions [is] the biggest political-advocacy group in America today, with an expansive issues agenda that just happens to advance the political fortunes of Newt Gingrich." See, Newt has not been an elected official for 12 years, and he is not currently running for any office, so raising money and spending it on himself does not violate the letter of the law.

That's clever, but it presents a big problem and still shows that Newt is a huge hypocrite. I will explain this after discussing another group run by Newt.

Another organization Newt uses to raise money is the Center for Health Transformation, which "is a for-profit outfit that charges big health insurers like Blue Cross and Blue Shield up to $200,000 a year for access to the mind of Newt Gingrich." Here's a list of the companies that have paid for such access. And since CHT is not even a political advocacy group, it faces no restrictions on fund raising and spending. Thus, it pretty much exists as another tool to advance Newt's personal agenda and interests.

And apparently part of Newt's agenda is taking credit for things he has not done, particularly when it comes to CHT. As Richardson reveals in the Esquire profile:

On its Web site, it describes its work in Georgia as a model for all its efforts and says the "cornerstone" of its work is a group called Bridges to Excellence. But CHT "had zero role in creating Bridges to Excellence," says François de Brantes, the group's CEO. CHT helped with organization for one year and hasn't been associated with them since 2008. The CHT Web site also singles out the "Healthy Georgia Diabetes and Obesity Project" as its major diabetes effort, but that was news to the American Diabetes Association. "We were not able to find any information about this," says the ADA's communications director, Colleen Fogarty. "The person that was in contact with them is no longer here."

Now, back to why all this is a big problem and shows Newt's never-ending hypocrisy. This Esquire excerpt frames the issue nicely:

[CHT] is not a registered lobby. Neither is American Solutions. So if Gingrich talks to a politician about energy policy while energy legislation is pending, he's just an intellectual exploring ideas. And he can go on TV and/or write articles without declaring his financial interest in pending legislation. One of Gingrich's former advisors told The Washington Post that he's "making more money than he ever thought possible, and doesn't have to tell everybody where it's coming from."

So, when Newt speaks (publicly or behind closed doors) about a given issue and proposed course of action, there is the real possibility that his views have been bought and paid for by some corporation or special interest. In other words, although he is no longer technically breaking any laws or rules, he is nonetheless engaging in the same kind of corruption he attacked in his political career.

Do you want a President who has been financed by special interests? Do you want a President who is potentially beholden to those special interests? Do you want a President who has been and still is a habitual hypocrite? If so, then Newt's your man.

Ego and personality revisited

And that brings us to the last section of this post. Part 5 of my previous series on Newt was about his ego and personality, and judging from the Esquire profile, nothing has changed. Part 5 shows that Newt has an enormous ego and ambition and yet utterly lacks the skills to be a leader.

As for his ego, I said back in December 2006 that Newt felt he was on a mission from God, and he still believes that. The Esquire profile closes with the question of whether Newt will run 2012.

One thing is certain — Newt Gingrich loves the question. "That's up to God and the American people," he tells you, in the serene tone of a man who already knows what God thinks.

You see, Newt is still trying to show that it is not that he wants to be President, but rather that he has to be President because God and the American people have ordained it. In Part 5, I explained how Newt was trying to start his own "draft Newt" movement. As he told Fortune magazine for a November 21, 2006, article: "I am not 'running' for president. I am seeking to create a movement to win the future by offering a series of solutions so compelling that if the American people say I have to be president, it will happen." And he is still spouting this bullshit today. As he told Richardson for Esquire,

I see myself as a citizen leader trying to understand three things:
• What the country has to do to be successful.
• How you would communicate that to the American people so they would let you do it.
• And then how you'd actually implement it if they gave you permission to do it.

Newt is now trying to say that he is simply trying to figure what needs to be done for the good of the country, but then he goes and shows that he feels he already knows what is good for the country--and that is for him to be President. I contend that Newt feels he has already figured out what the country should be doing. Check out his various websites and his books and anything he has written or said for evidence of my contention. And now he is simply trying to get the American people to insist that he be our leader. Anyone who thinks otherwise should feel free to explain why I am wrong, but choose your words carefully.

The only thing Newt really wants to figure out is how to get what he wants. That is his priority. That was the case when I wrote Part 5 in December 2006, and it is still true today. Mickey Edwards was in the House from 1977 to 1993. He rose to be one of the Republican leaders in the House during his tenure (chairman of the Republican Policy Committee, a member of both the House Appropriations and Budget committees, and ranking member of the House Subcommittee on Foreign Operations). That means he knows Gingrich. Here's what Edwards said about Newt in the Esquire profile:

"I've known Newt now for thirty years almost," says former congressman Mickey Edwards. "But I wouldn't be able to describe what his real principles are. I never felt that he had any sort of a real compass about what he believed except for the pursuit of power."

So, Newt still thinks that God His ownself wants Newt to be President, and he is still determined to start his own draft movement so that his divine destiny will be fulfilled. What a douchebag.

I noted in Part 5 that Gingrich has been described as "a psychodrama living out a fantasy." And the person who provided that description was...wait for it...Newt.

As for the rest of his personality, read the Sheehy Vanity Fair article and you will see that I went easy on Newt in Part 5. Then read the Esquire profile and ask yourself if you think Newt has the emotional and psychological makeup to be President. I am not going to discuss any of those specifics here. You can read them for yourself.

Instead, I will close with by discussing Newt's answer to Marianne's question about the speech he gave on family values after he revealed his 6-year affair with Bisek. The question was "How do you give that speech and do what you're doing?" Here was Newt's response:

"It doesn't matter what I do," he answered. "People need to hear what I have to say. There's no one else who can say what I can say. It doesn't matter what I live."

Anyone who might want to claim that Newt is not a hypocrite should really--really--rethink that.

And there are clues that he still feels this way today. Go back and look at what he said in Esquire about being a "citizen leader." Go back and look at what he has said about his "draft Newt" idea. Newt always talks about his ideas. According to him, his ideas are so great that they must be implemented. He also seems to think that since they are his ideas he is the only person for that job. As far as I am concerned, that shows that he doesn't think that his own character is relevant to the equation. He's been chosen by God, you see, so anything he does is justified. Newt thinks he does not have to answer to anybody. Basically, he thinks that everybody should do what he says, but he is not required to practice what he preaches. Someone who thinks that way is hypocritical. When that hypocrisy is then combined with a self-created divine appointment and a desire for power, that someone becomes dangerous.

And there is Newt Gingrich in a nutshell.