The Tea Party has some major accomplishments to their credit that will be on display this week.  The first is a reading of the Constitution in the House of Representatives to open the 112^th Congress, the second is the change to rules that require any bill to state where in the Constitution Congress has the authority to enact that legislation.

Members of the House and the Senate, and the President of the United States take an oath to uphold the Constitution of the United States.  The legislative branch of the federal government, that is the Congress, is responsible for making law.  Here is how old time progressives view that function

 Henry Waxman, outgoing chairman of the House Energy and Commerce Committee, all but dismissed any role for Congress in assessing the constitutionality of its actions: “Whether it is constitutional or not is going to be whether the Supreme Court says it is.”

That is like saying that professional baseball players don’t need to read the rulebook.  They’ll just play the game and let the umpires tell them if they are playing correctly or not.  Can you imagine what that would look like?

While it may be true that the Supreme Court can rule on the Constitutionality of any law, the first step should be for the Congress to determine if it even has the authority to make a particular law.  The function of the court is to interpret the law, that is, if there is disagreement over what a particular law means, the courts serve to interpret that meaning.  The clearer the law, the less there is for the court to interpret.  But to dismiss the Constitution out of hand or any need to even read it, mocks the very oath of office the member takes.

Consider price controls.  There is no authority in the Constitution to set prices of goods and services and the Founders would be appalled at any attempt by the federal government to do so.  But Congress passed such laws that resulted in Supreme Court cases such as Wickard v. Filburn, where a farmer was told that he couldn’t exceed  his quota for wheat production, even though it was entirely for consumption on his own farm.  That Supreme Court case is being used as a foundation for the requirement in ObamaCare to make us buy insurance or pay a fine.  Now if the Congress had read the Constitution and understood it had no such authority, the matter would have ended sixty-some odd years ago.  But now we have an expansive government and bad law built upon the foundation of prior bad law, when such laws should never have seen the light of day.  But progressives like Waxman says that Congress can take on anything it wants and just throw it over the fence and let the Supreme Court sort it out.  This has led to the contentious selection process of Supreme Court  nominees because that is where the laws are finally made.

By adopting this new process perhaps we can make members of Congress do their jobs, and the Supreme Court do theirs.  The states will become more prominent and the federal government will shrink back.  Just because someone thinks, “Hey, that’s a good idea, someone should do that,” does not mean that Congress has the power to act. 

There was a debate on the O’Reilly Factor last night about the poor job of clearing snow off the streets of New York after the recent blizzard.  There were some accusations that the unions were dragging their feet in the cleanup because of recent layoffs by the Bloomberg administration.  The host asked the question, “Should the feds step in?”  No, No, NO!  It is not a function of the federal government to oversee all state and local government and if they find incompetence, step in.  It is up to the people to throw the bums out, and put in place a local or state government that works.  The federal government has a limited number of functions.  Everything else is the responsibility of the states and the people.  It is time to get back on the course the Founders plotted.

That’s my opinion; I’d like to know yours.  Please comment below.

Whether you call it an iceberg or a torpedo, ObamaCare just struck something or vice versa and it doesn’t look good.  The ship is taking on water and you can hear the orchestra tuning up as they rearrange the deck chairs.

Federal Judge Henry Hudson, in Virginia, ruled that the odious provision in ObamaCare requiring all Americans to buy health care insurance or pay a fine was unconstitutional.  This is the core of ObamaCare, for without it this massive expansion of government into our lives would simply not work.  He went right to the heart of the argument that opponents have been making all along. 

“Article I, Section 8 of the Constitution confers upon Congress only discrete enumerated governmental powers.  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.  See U.S. Const. amend. X; Prinz v. United States, 521 U.S. 898, 919,117 S. Ct. 2365, 2376-77 (1997).

“On careful review, this Court must conclude that section 1501 of the Patient Protection and Affordable Care Act – specifically the Minimal Essential Coverage Provision – exceeds the constitutional boundaries of congressional power.”

That’s the iceberg.  The torpedo was the concept of severability.  In many contracts there is a severability clause.  That clause states that if a court finds any provision of that contract to be invalid, the invalid portion will be severed from the rest of the contract and the rest of the contract will remain valid.  ObamaCare did not include such a clause, which means that the court, in finding one part of it invalid, could find the whole kit and caboodle invalid.  No need to repeal, override an Obama veto of repeal, etc., etc.  It would be dead.

But Judge Hudson wasn’t prepared to go that far.  He knows this is not the end of the road.  This will find its way to the Supreme Court and since there are a few years to go until most of the provisions of the bill kick in, he was reluctant to take that step.

“The teachings of Free Enterprise are a direct descendent of the rule restated in Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 107 S. Ct. 1476 (1987). “The standard for determining the severability of an unconstitutional provision is well established: ‘[u]nless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.’ Id. At 684, 107 S. Ct. at 1480 (quoting Buckley v. Valeo, 424 U.S. 1, 108, 96 S. Ct. 612, 677 (1976))

“In applying this standard, the Court must also consider whether the balance of the statute will function in a manner consistent with the intent of Congress in the wake of severance of the unconstitutional provision.  Alaska Airlines, 480 U.S. at 685, 107 S. Ct. at 1480. Finally, in evaluating severability, the Court must determine whether in the absence of the severed unconstitutional provision, Congress would have enacted the statute.  Id. at 685, 107 S. Ct. at 1480. Given the vagaries of the legislative process, ‘this inquiry can sometimes be ‘elusive.’’  Free Enter. Fund, 130 S. Ct. at 3161 (quoting I.N.S. v. Chadha, 462 U.S. 919, 932, 103 S. Ct. 2764, 2774 (1983)).

“The final element of the analysis is difficult to apply in this case given the haste with which the final version of the 2,700 page bill was rushed to the floor for a Christmas Eve vote.  It would be virtually impossible within the present record to determine whether Congress would have passed this bill, encompassing a wide variety of topics related and unrelated to health care, without Section 1501.  Even then, the Court’s conclusions would be speculative at best.  Moreover, without the benefit of extensive expert testimony and significant supplementation of the record, this Court cannot determine what, if any, portion of the bill would not be able to survive independently.”

So for now, we don’t know if the torpedo hit or missed.  But we do know this.  Nancy Pelosi was right.  In words that will go down in history regarding a Congress that is broken she famously said, “We have to pass the bill, to know what is in the bill.”  There you have the Speaker of the House of Representatives fighting feverishly, using every parliamentary trick at her disposal to pass this bill, particularly after Scott Brown was elected Republican senator from Massachusetts, to pass a bill she does not understand.  Consider Judge Hudson’s words that the bill was “encompassing a wide variety of topics related and unrelated to health care,” and you can’t help but ask, what has our government come to?  What were the elected representatives who voted for this doing?  Isn’t it their job to know what they are voting for?  Isn’t that why we pay them $174,000 per year?

While the band may play on, this is a serious blow to ObamaCare.  Many Americans rose up because of this bill and got involved in politics for the first time.  That is a good thing.  Let us pray they stay involved.

That’s my opinion; I’d like to know yours.  Please comment below.

I still find myself in awe of our Founding Fathers who created our form of government.  The competing ideas that they sifted through to come up with our Constitution and the safeguards in it is wondrous.  The designs upon it by the progressives is by equal measure disturbing.

The progressives envision a national government that they can dominate and that, in turn, will dominate us.  There is no activity over which they do not feel they can or should control.  Private property is a panacea, to keep the masses from open revolt, but they really believe that all wealth that is generated belongs to the government except for the portion they permit us to keep.  If you think that statement is unimaginable consider this.  How often do you hear, concerning the current debate over the Bush tax cuts, that we cannot afford them for the rich?  Think about it.  They say our government cannot afford to allow certain citizens of this country to continue to pay the same level of taxes in 2011 that they pay today.  That the government somehow has to pay for a tax cut, that actually isn’t even a cut but rather a continuation of what has existed for the last ten years.  How is getting less than you want a cost? If you awake on Christmas morning and do not find the present you have been hoping for under the tree, do you say, “Man, that’s gonna cost me?” Of course you do not.

A Massive Federal Government

Think about the many federal departments and agencies that exist today for which you will find no authorization in the Constitution: Education; Agriculture; Housing and Urban Development; Energy; Health and Human Services; Transportation.  Did they not have education in the eighteenth century? Are we more agrarian today than we were in 1789?  If not, why do we need a Department of Agriculture today, but the Founders didn’t see a need for it then?

The progressives are fighting for the continual concentration of functions at the federal level where the voices of the people are faint, but the voices of the special interests are robust and clear.  The branch of the federal government that is closest to the people is the House of Representatives.  But ponder how small your voice is in that chamber.  You are one of some 700,000 in your congressional district; your congressman or woman is one of 435 in the House of Representatives.  How do you get your voice heard at the federal level?  And yet Congress will tell you what kind of light bulb to buy or what kind of toilet you must flush.  Is this what our founding fathers envisioned?

The Bloody Revolution

To establish our country they fought a brutal revolution; a revolution where 50% of the mortal wounds were caused by bayonets.  Now that’s up close and personal.  It is not something they entered into lightly and a reading of the Declaration of Independence will tell you that they pledged their lives when they signed that document and their death warrants as well.  If captured by the British they surely would have been tried and executed for treason.

In designing our form of government they were very suspicious of strong central power and authority, having just thrown off one.  They did not trust government.  As Jefferson said, “When governments fear the people, there is liberty.  When the people fear the government, there is tyranny.”  Here is a simple test, do you fear the IRS or does the IRS fear you?

The Founders designed the Constitution to have strictly enumerated powers given to the federal government with all other powers retained by the states or the people.  They did not design a democracy, but a republic.  In that republic they built numerous checks and balances to prevent the accumulation of power. It has been the goal of the progressives to remove those checks and balances and put in place the tyranny that fears no people.

The Structure of the Federal Government

Among the balances they put in place was that the people would directly elect the members of the House of Representatives.  That is the body of government closest to the people.  If you recall the wording of the Tenth Amendment it speaks of the federal government, the states and the people.  The Senate was to be appointed by the state legislatures to represent their interests.  The president was to be elected, not by the people, but by the Electoral College.  Lastly, judges were to be appointed for life by the president with the advice and consent of the senate.  Why did they do this?  One reason is that they believed that if a proposed law had the backing of the majority of the people (House of Representatives) and a majority of the states (Senate) then it was probably a good thing, otherwise slow it down.  The fewer the number of laws, the greater our liberty.

The Progressives Attack

The progressives began their designs on the Constitution with the introduction of the income tax through the passage of the Sixteenth Amendment in 1913.  By allowing the government to tax incomes the government could now afford to greatly expand. However, to be able to expand it had to have the consent of the states, which was not likely to be granted.  So two months after the passage of the Sixteenth Amendment, the Seventeenth Amendment was ratified.  The Seventeenth Amendment called for the direct election of Senators, rather than having them appointed by the state legislatures.  The individual citizens picked up two more votes in the federal government, in most cases an even weaker voice than their Representative, and the states were shut out.

Do you think things such as unfunded mandates could pass in Congress if the states still chose the members of the Senate?  Social Security? Medicare? The Department of Education? The Department of Housing and Urban Development? And on and on?  Think of some of the more radical members of the Senate.  Do you think Al Franken would have been appointed by the Minnesota state legislature?  For many years in New York, the State Assembly was under the control of the Democrats but the State Senate was under the control of the Republicans.  The governorship passed back and forth between representatives of the two parties.   However, New York’s two Senators are Democrats and win reelection easily because of the concentration of Democrats mainly in New York City.  Could Hillary Clinton have moved into New York and immediately become its newest Senator with a Republican governor and Republican controlled State Senate? She was elected Senator from New York before she even moved out of the White House.  So instead of representing their state legislatures, Senate candidates focused on the population centers of their states to appeal directly to the people and to get elected and reelected.  The states were reduced from sovereign entities to subsidiaries of the federal government.

The Supreme Court

When Franklin Roosevelt was president he tried to pass his massive socialist programs but found that the Supreme Court was striking down many of his programs as being unconstitutional.  Roosevelt wanted to pack the court by increasing its membership from nine justices to fifteen.  He argued that the justices were old and over worked.  So he wanted to appoint a new justice for every existing justice that was seventy years or older.  His plan failed.  But when he broke with George Washington’s precedent and that of every president who followed him of serving no more than two terms, he was eventually able to appoint every justice to the Supreme Court.  So he got his way, it just took longer.

The Supreme Court can be considered the collateral damage of the Seventeenth Amendment.  The Justices of the Supreme Court are appointed by the president with the advice and consent of the Senate.  However once the Senators became directly elected by the people things changed.  Would a distinguished jurist like Robert Bork be treated as shamefully as he was by the lie filled speech of Ted Kennedy if Kennedy and Joe Biden weren’t doing the work of the pro-abortion lobby?  Would Clarence Thomas be subjected to the electronic lynching he faced if not for some Senators pandering to their special interest groups?  What we now have are potential Supreme Court justices who have learned that if you don’t want to get “Borked” keep your mouth shut during your confirmation hearings.  So we don’t know who we are going to get until a lifetime appointee is on the bench and then it is too late.

The 2000 Presidential Election

Who can forget the 2000 presidential election?  The Democrats still say Al Gore won, not because of Florida (he lost the election there, he lost the re-count, he lost the re-re-count) but because he won the popular vote.  The debates raged, why do we have an Electoral College?  The president should be elected by popular vote only. 

The argument follows the one made previously about the direct election of senators.  The Electoral College forces presidential candidates to campaign everywhere because everywhere counts.  There are at least three electoral votes to be had in every state.  The Founders were very concerned about balance.  They did not want the president just to be elected by the people of New York, Boston and Philadelphia, the large cities of that time.  Today, if the Electoral College was abolished the election would focus on the media  and population centers of New York, LA, San Francisco, Chicago and the large cities because that’s where it is easiest to get the message out and that is where the majority of the people are.  The progressives would put up pretty much the same candidates as they do today, perhaps more to the left.  This is their home turf and power base.  Instead of traveling around the country they could concentrate their time and money in a few large cities.  The Republicans would probably field candidates of a far more moderate stripe to not get hooted off the stage in New York.  Let me illustrate.

Electoral College vote Bush-Gore 2000

The Democrats claim Gore won in 2000 because he won the popular vote.  He lost in the Electoral College by five votes.  If you look at the breakdown of the states Gore won versus Bush, Gore took the Northeast, the Great Lakes area and the West Coast.  With the exception of New Mexico, Bush took everything else.

Let’s dial it down a level and look at who won at the county level.

Bush-Gore 2000 Winners by County

If you look at it at the county level, you could drive from the east coast to the west coast without entering a single county that Gore won.  You could do the same driving from Canada to Mexico.  But if popular vote was the metric, the man who won 80%-90% of the land mass of the United States would have lost.  Why should you not have a say, if you don’t live in a major population center?  It is not like Bush won in an Electoral College landslide and it is not like Gore absolutely trounced Bush in the popular vote.  The purpose of the Electoral College is to act as another brake on the tyranny of the majority.  

Where Do We Go From Here  

We are presently at a crossroads.  We have an electorate that is more knowledgeable, more aware, and more engaged than at any time in my memory.  We can continue to go down the socialist path toward a massive central government that takes all of our liberties for a measure of sustenance, or we can turn the tide and demand our liberties back.  

Let us begin by repealing the Seventeenth Amendment.

In today’s New York Times there is a story about Rick Lazio latching on to the Ground Zero mosque issue as his new campaign theme.  The first television ads I have seen regarding his run for governor are about this issue.  He is strongly opposed.  Okay, but he wants us to  elect him governor to do what, exactly?  New York has a lot of problems, from a state government that is completely dysfunctional to being broke and since everyone seems to agree that the mosque at Ground Zero is not about the right to build there but about the propriety of building there, what does it have to do with the office of governor?

When he pinch hit for Rudy Giuliani running for the senate against Hillary Clinton, after Mr. Giuliani dropped out of the race with prostate cancer, Mr. Lazio took a similar tack.  You probably remember their first debate when Mr. Lazio famously walked across the stage to a startled Mrs. Clinton and asked her to sign his pledge on campaign finance reform.  She refused and that was his theme.  The problem is that although many people feel our political process is corrupt, when it comes to campaign finance reform, most people don’t care about it.  Those who care about it are incumbents, who want to cripple those who run against them.  Some of the so called “reforms” have politicians spending so much time chasing $50 donations that they can’t do what they were elected to do.  Either that or we can only run multi-millionaire candidates who can spend their own money without limits.  (Simple solution: let anyone contribute any amount to any campaign at any time and just post the information on the Internet within 72 hours in a database that is fully searchable. Done.)  It only took a little time for the novelty of the debate video to fade and Mr. Lazio had no campaign.

Another challenger in this year’s governor’s race, Carl Paladino, one of the aforementioned millionaires, has been hitting the airwaves more frequently and more effectively than Mr. Lazio.  He is not a one trick pony.  His first ads hit Andrew Cuomo on being a career politician and that he, Paladino, was a business man who knows how to create jobs.  What do we desperately need now?  Jobs.  What are we sick of? Career politicians, like Mr. Cuomo, who played a role as HUD Secretary in the Clinton administration of feeding the real estate frenzy and the subsequent housing collapse that created the financial crisis.

On the mosque situation, agree or disagree with him but Mr. Paladino says exactly what he will do about it.  He will take the property away under Eminent Domain (thanks to the activist judges on the Supreme Court who gave us Kelo v. City of New London) and use the property to create a war memorial.  He doesn’t just say he will oppose it he tells us what he will do about it.

In the interest of full disclosure, I contributed to Rick Lazio’s senate run in 2000 and I have no connection with the Paladino campaign.  But if Mr. Lazio is serious about defeating Andrew Cuomo for governor, he has to find some issues that not only resonate with the people of New York but that are the responsibility of the governor to address.  If not, rather than split the conservative vote, he should step aside and help ride the anti-incumbent wave that Carl Paladino is surfing.

We have come to expect a fight whenever a seat opens up on the Supreme Court as there are distinct battle lines between conservatives who believe the Constitution should be interpreted how it was written and liberal/progressives view it in light of what they feel it should be today.  In other words, conservatives approach the Constitution with a magnifying glass while liberal/progressives approach it with an eraser and pencil.

I happen to believe that elections have consequences and that for the most part the president should be allowed to nominate who he chooses to fill a Supreme Court vacancy and have them approved.  However, as Democrats like to point out when a Republican sits in the White House, the Senate has a Constitutional role to give advice and consent on such nominees, not just rubber stamp them, which is true enough.  Unfortunately, today the advice and consent process is almost a sham, because the nominees have learned how to keep their mouths shut and defer from answering all but the blandest questions under the cover that it may come up before them in a case on the court.  We can thank Ted Kennedy for this as he turned the advice and consent role into an opportunity to smear a nominee, Judge Robert Bork, in the most vile and mendacious way to pander to the base of the Democratic Party.  Since then, it’s been lights out on any serious probing of the thought process of nominees to our highest court.

But what about Elena Kagan?  After the Senate Judiciary panel approved her nomination along nearly party lines (Lindsey Graham – R voted in favor) most Americans (87%) believe she will be confirmed, according to Rasmussen.  However, in the same poll Americans oppose her nomination 42% to 36%.  Is she qualified to a lifetime appointment to the Supreme Court?

One of the arguments against her is that she has never been a judge before.  That is true, but it is also true for about one-third of past Supreme Court justices.  However, among those past Supreme Court justices who were not judges, they had on average 20 years experience in the private practice of law.  Ms. Kagan has two years experience in private practice, two years.  The rest of her experience in academia or government service. 

Before her current position of Solicitor General, she had never argued a case at a trial.  She has no judicial experience, next to no private practice experience, and thanks to Ted Kennedy, she revealed as little as possible about her judicial philosophy to get confirmed.  Her key strength, according to Barack Obama, is her ability to build consensus.  I’ll give you a translation of what that really means.  Her job will be to vote with the liberal bloc of the Supreme Court and use her persuasive powers on Anthony Kennedy to peel him off and generate as many 5-4 wins as possible.  President Obama does little without a purpose and his purpose is to pull the Supreme Court in the same direction as the laws he has jammed through against the will of the American people.

Despite the approval of the Judiciary committee, an effort must be mounted to reject or filibuster her approval.  How can we accept someone with so little in the way of qualifications to a lifetime appointment?  We know next to nothing about her judicial philosophy.  There are no cases on which she has written opinions that can be examined.  With regard to what she has written in the government service she simply says I was acting as an advocate for my client, and those are not necessarily my views.  Who could argue with that?  So what are her views?  We don’t know and like Nancy Pelosi claimed with the health care monstrosity, “we’ll just have to pass it to find out what’s in it.”  With a lifetime appointment, you can’t take it back later if you disagree with her eventual positions.  The track record of the “Trust me” presidency is downright frightening.

With all due respect to Elena Kagan, I don’t see how we can idly sit by and silently accept another Obama abomination of ramming through his agenda without regard for the people who elected him.  He is essentially asking us to grant a lifetime appointment that could profoundly affect our liberties, to someone who is a blank slate that we know little about. He should withdraw the nominee and submit another candidate.

I do not like to throw around a charge of mendacity without good reason particularly after listening to the mainstream media and liberal blogosphere accuse Bush of this all day long.  But the more I listen to what comes out of this administration and the actions they take it is getting harder to hold my fire.

Take for example the brouhaha over the immigration law that hasn’t even gone into effect yet in Arizona.  From the start the administration has falsely portrayed the law as racial profiling, but when asked if they had actually read the ten page law, both Attorney General Holder and Homeland Security Secretary Napolitano said they had not.  How do people in such senior positions in any administration make such a bold claim without reading what they are opposing?  It begs the question, do they know they are talking about?

The federal government has gone forward and is suing Arizona over the law claiming that it preempts federal law.  But here are some interesting questions:

• If the Arizona law preempts federal law and that is a bad thing, why does the federal government not sue San Francisco and other cities who have openly professed that they are Sanctuary Cities and immigration law will not be enforced therein?
• A recent news report is that there is a law on the books in Rhode Island that is virtually identical to the law in Arizona and it has withstood judicial challenge?  Why isn’t the federal government suing Rhode Island?
• The thrust of the federal government’s pique with the Arizona law is their claim that it is discriminatory.  But this same administration has just ordered that a case be dropped against a radical hate group, the Black Panthers, for putting armed thugs outside a polling place in Philadelphia on Election Day in 2008.  According to six career Civil Rights attorneys in the Justice Department, the case was a slam dunk and they had already gotten a default judgment from the court, but this administration chose to snatch defeat from the jaws of victory.  The Justice Department’s claim is that the facts did not fit the law.  Anyone who has seen the video of the incident knows that is a bald faced lie.  Is this administration for discrimination or against it?

The latest move by this administration against the rest of us is the recess appointment of Donald Berwick as the head of Medicare.  The lie in this case, is that the Republicans were stalling the appointment for “political purposes.”  Now other presidents have used recess appointments.  Both Clinton and Bush used them many times, however it was typically when they could not get the Senate to act on their nominee.  In this case, Max Baucus (D – MT), had not even scheduled hearings and eleven weeks after the nomination, the administration had not yet completed the nominating paperwork.  So was this action taken because of inaction on the part of the Senate or was the administration lying because they really didn’t want a public debate on Dr. Berwick?

Dr. Berwick has said he is, “Romantic about the National Health Service,” of Britain.  For all the false claims by the Obama Administration that if you are happy with your current health insurance you will be able to keep it, they stealthily appoint a socialized medicine disciple.  Dr. Berwick has also famously said:

 “The decision is not whether or not we will ration care – the decision is whether we will ration with our eyes open.”

Let’s see, the Obama Administration appoints Dr. Berwick head of Medicare.  Medicare is the health care program for the elderly.  Dr. Berwick is plain about health care rationing and suggests the way to do it is with our eyes open.  While the term “death panel” may have been used by Sarah Palin partially for its shock value to drive home her point, changing the name to a “rationing” panel would make it different in what way?

Here is the key distinction.  In the hands of the individual and their family, they can decide what kind of care they want to provide their loved ones.  They can decide when enough is enough or whether to press on.  In a free market, insurance policies would be true insurance not medical payment plans.  But regardless you would have the liberty to decide.  In this administration’s world, some bureaucrat makes the decision and after they have driven all the alternatives out of business, other than those available to the wealthy, you will have no choice but to succumb to the will of Big Brother.

We are currently surrounded by news of massive government failures in regulation in the areas of finance and the oil industry and we are to believe that they will be superb in running one-sixth of the economy.  Do you believe the lies?

“I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect, and defend the Constitution of the United States.”  – Presidential Oath of Office,  Constitution of the United States of America, Article II, Section I

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.” — Constitution of the United States of America, First Amendment.

“This ruling strikes at our democracy itself,” Mr. Obama said, adding: “I can’t think of anything more devastating to the public interest. The last thing we need to do is hand more influence to the lobbyists in Washington, or more power to the special interests to tip the outcome of elections.” — NY Times, January 25, 2010

Last week in Citizens United v. Federal Election Commission the Supreme Court struck down a provision in the McCain-Feingold campaign finance reform bill that prohibited “electioneering communication”, that is, broadcast ads that name a federal candidate within 30 days of a primary election or within 60 days of a general election.  It is what I and many others dub the “Incumbent Protection Act”, because it tips the scales heavily in favor of incumbents who have the name recognition, and the communication power of their office as an advantage in an election.  In addition, the 30 days or 60 days are when many voters really start paying attention.  Our elected representatives love to talk tough about reform, but that reform typically ends up making it harder to replace them.

Obama Weighs In

As the above quotes demonstrate, President Obama’s job is to uphold the Constitution.  The Constitution protects free speech.  So why is President Obama attacking a Supreme Court ruling that protects Free Speech?  Is that what he is supposed to be doing?  Instead he says it “strikes at democracy itself.”  He doesn’t mention that it also lifts restrictions on the speech of unions that typically favor the positions of his party.  Perhaps that is because with the Obama administration unions have extraordinary access to the White House. From January to July, White House logs show that Andy Stern, President of the Service Employees International Union (SEIU) visited the White House 22 times, more than anyone else in the visitor logs.

If President Obama is truly concerned about the influence of lobbyists, it does no good to drive them out of advertising on TV into personal visits to the White House.  Of course, the president would be selective in who has an audience with him.  If you really want to reduce the number of lobbyists, then reduce the reasons for them to lobby.  If, for example, you want to reduce the lobbying effort of the giant agricultural corporation Archer Daniels Midland, then get the government out of the business of ethanol subsidies, farm subsidies, and shut down the federal Department of Agriculture.   Lobbyists will call on Washington less, if they have less to call about.  Shrinking the federal government will reduce the number of lobbyists and their influence, reduce the deficit, help balance the budget, and make the government more manageable so that we can reduce or eliminate waste and fraud.

Supreme Court Justice John Paul Stevens blasted the Supreme Court’s 5-4 decision saying that the ruling is not grounded in the writings of the Founding Fathers.  His argument being that certain groups could have their speech curtailed and only individuals had their speech protected.  Justice Antonin Scalia wrote a separate concurring opinion to address Stevens argument.  In part:

“I write separately to address JUSTICE STEVENS’ discussion of “Original Understandings”… This section of [Stevens'] dissent purports to show that today’s decision is not supported by the original understanding of the First Amendment. The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment. It never shows why “the freedom of speech” that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form. To be sure, in 1791 (as now) corporations could pursue only the objectives set forth in their charters; but the dissent provides no evidence that their speech in the pursuit of those objectives could be censored….

The [First] Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals–and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is “speech” covered by the First Amendment. No one says otherwise.” – Antonin Scalia, concurring opinion in “Citizens United v. Federal Election Commission

Newly seated Justice Sonia Sotomayor voted against free speech.  I always marvel when people who succeed against tough odds attack the very principles of this country that allowed them to succeed.  The Bill of Rights was designed to protect against the tyranny of the majority by defining certain rights of every individual that could not be infringed upon.  It is one reason why people around the world fight to come here for a chance to succeed.  Because they know that these principles will allow them to do so if they have the drive to succeed.

The Incumbent Protection Act, aka McCain-Feingold, took a big hit yesterday from the Supreme Court.  It is particularly timely with so many incumbents nervously eying the exits.  The McCain-Feingold bill prohibited corporations and unions from “electioneering communications” within in 30 days of a primary, or 60 days of a general election.  Those time limits probably match pretty nicely with when most people start paying close attention to elections.  So if this kind of communication is cut off, who is left with the power of name recognition?  That’s right, the incumbent and that is probably why 90% of incumbents are re-elected.

Outrage on the Left

President Obama immediately came out swinging saying it was a victory for “big oil, Wall Street banks, health insurance companies, and other special interests.”  He somehow overlooked the SEIU union whose president topped the list of visitors to the White House.  Unions will have unfettered communications as well.  Chuck Schumer promises hearings and the Naderite Public Citizen group is proposing a constitutional amendment banning free speech for “for-profit” corporations.  I’ll give you a moment to ponder that; a constitutional amendment to eviscerate the First Amendment.

The Momentum is Building

On April 15 it will be the first anniversary of the Tea Parties that were held across the country.  Let’s raise a cup of tea, that the Ship of Liberty that was foundering on the rocks may at last be turning it’s guns on the enemy and turning the tide of battle.  Virginia, New Jersey, a close loss in NY23, Massachusetts, the First Amendment, the momentum is building.  But let’s not forget the words of Churchill:

Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning. — Winston Churchill

Don’t let up until we have our country back.

In the midst of the financial meltdown the government and financial pundits argued that they had to rescue the big banks because they were too big to fail.  If we don’t save them, they could bring down the entire U.S. economy and in  turn the economy of the entire world.  Ignoring the history and responsibility for how they got there, that could be a true statement that the government had to do something to avoid a worldwide panic.

The panic averted, many banks paid the money back with interest, are in the process of paying out massive bonuses and the Obama administration is twisting itself in self-righteous knots to tax them into humility.  Good luck with that.  While they target the banks, they are hands off on Freddie Mac and Fannie Mae, GM and Chrysler because to tax those basket cases would just be taking money from the left taxpayer pocket and moving it to the right taxpayer pocket.  If you look to the root of the problems of the fiscal meltdown you will find the government’s hand in almost every corner, but don’t expect this administration to try to get to the bottom of it.

Back Up, Go Ahead

There was an old Abbot and Costello routine where Abbot was guiding Costello in parking a car.

Costello asked what he should do and Abbot said, “Back up.”

Costello confirmed, “Back Up?”

To which Abbot replied, “Yeah, go ahead.”

“Go ahead?”

“No. back up.”

“Back up?”

“Yeah, go ahead.”

I don’t know if the Obama administration is Abbot or Costello, but they are telling banks, “Lend more money.”  Then they tell the banks, we are going to raise taxes and take your money away.  Then they ask the bank, “Why aren’t you lending more money?”

Programs You Can Believe In

Medicare

It is estimated that Medicare loses about $60 Billion ANNUALLY in fraud.  That’s right about $60 billion of your tax dollars are stolen every year from this program.

“If you want to find Medicare fraud, the first place you should look is South Florida, where 60 Minutes and correspondent Steve Kroft were told it has pushed aside cocaine as the major criminal enterprise.” – 60 Minutes – Medicare Fraud: A $60 Billion Crime

While the Obama Administration pushes their health care program one of the ways of funding the program is through savings in Medicare fraud.  However, no one has been able to stop it.  Not Republicans.  Not Democrats.

First Time Home Buyer Credit

This wonderful new program was designed to help first time home buyers achieve the American Dream.  Unfortunately, it doesn’t take a genius to also achieve that criminal American Dream, fleecing the government.

It’s hard not to laugh when viewing the results of the federal first-time home-buyer tax credit. The credit, worth up to $8,000 for the purchase of a home, has only been available since April of last year. Yet news of the latest taxpayer-funded mortgage scam has traveled fast. The Treasury’s inspector general for tax administration, J. Russell George, recently told Congress that at least 19,000 filers hadn’t purchased a home when they claimed the credit. For another 74,000 filers, claiming a total of $500 million in credits, evidence suggests that they weren’t first-time buyers. – WSJ – First Time Fraudsters, 10/29/2009

The  IRS even had to admit that in an investigation they found 53 cases where IRS employees filed “illegal or inappropriate” claims for the credit.

Too Big To Govern

A new president is elected once every four years, but the vast government bureaucracy remains.  It is said that a president will only be able to address 3-4 top priorities in their term.  By the time they appoint executive department heads and the Senate approves them and they set about to figure out the departments they are in charge of, it is an enormous undertaking to try to make significant changes.  To try to curb fraud, to overcome the inertia of the entrenched bureaucrats who know they will outlast the appointee, and their friends in Congress who will probably be there as long, is just too tall an order to accomplish in a four year cycle.  Every time a new liberal takes over, their first order of business is to make the bureaucracy larger.  It does not work.  It will not work.

The Only Solution

The only solution is to make the federal government smaller.  It must be bold.  It must be dramatic.  Tweaking it at the margins will fail.  Entire departments must be shut down.  The Constitution should be the blueprint for this.  If the power is not explicit in the Constitution, shut it down and allow the states or local governments to take it up if they choose.  Then drastically cut taxes accordingly.  Let people keep their money and decide at the local level if they want that service or not.  Let every state try their own solution and each state can learn what works and what doesn’t from each other.  But this idea of pushing every solution up to the federal and let one size fits all be forced on everyone is, quite simply, madness.  We need less government and more liberty.

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.  – Tenth Amendment of the Constitution of the United States of America

 The Tenth Amendment

The Tenth Amendment of the Constitution is an interesting piece of work.  The way the Constitution is written is to explicitly state what the national government could do, and thereby exclude it from doing everything else.  When some of the Founding Fathers advocated a Bill of Rights the federalists strongly objected.  Why?  First, they thought it was redundant.  If, for example, the Constitution did not say the national government could regulate speech then having a First Amendment guaranteeing the Freedom of Speech made no sense.  The national government was only permitted to do precisely what the Constitution said it could do. 

 The second objection concerned having the opposite intent of the original writing of the Constitution.  You see, if the constitution has a provision that says what the national government cannot do (First Amendment barring free speech for example) it implies that the national government can do anything else that is not prohibited, which is exactly what the federalists did not want the Constitution to say.  It wanted to specifically enumerate the powers granted to the national government and no more.  So they compromised by adding the Tenth Amendment, which spelled out that distinction.  To quote Hamilton in Federalist 84:

 “Why, for instance should it be said that the liberty of the press should not be restrained, when no power is given by which restrictions may be imposed?”

The Federal Government’s Runaway Growth 

The federal government has expanded enormously particularly with FDR and the New Deal.  The Supreme Court has paid scant attention to the Tenth Amendment in curbing that expansion.  Perhaps it is time they gave it a closer look and more weight in their decisions.

 Below is what the Constitution says Congress has the Power to do.

 Article I. Section 8. The Congress shall have Power To:

• Lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States;
• To Borrow Money on the credit of the United States;
• To regulate Commerce with foreign Nations, and among the several states, and with the Indian tribes;
• To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
• To coin Money, regulate the value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
• To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
• To establish Post Offices and post Roads;
• To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
• To constitute Tribunals inferior to the supreme Court;
• To define and punish Piracies and Felonies committed on the high seas, and Offenses against the Law of Nations;
• To declare War, grant Letters of Marque and reprisal, and make Rules concerning Captures on Land and Water;
• To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two years;
• To provide and maintain a Navy;
• To make Rules for the Government and Regulation of the land and naval Forces;
• To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrection and repel Invasions;
• To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Apportionment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
• To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings; — And
• 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.

 Does anybody see anything there about minimum wages?  miles per gallon?  housing subsidies?  urban development? education? energy?  James Madison summed it up thus in Federalist 45:

“The powers delegated by the proposed Constitution to the Federal Government are few and defined.  Those which are to remain in the State Governments are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace negotiations, and foreign commerce;….The powers reserved to the several states will extend to all objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement, and prosperity of the state.”

To see how far we have come from Madison’s and the other Founding Fathers views can be seen in the New Deal era court case Wickard v. Filburn(1942).  Roscoe Filburn was a farmer during the Great Depression who was growing wheat to feed his chickens.  The Federal Government had imposed limits on how much wheat a farmer could grow based on acreage in order to prop up wheat prices.  The amount of wheat that Filburn was growing exceeded this number, however, Filburn intended to use the wheat entirely on his own farm.  Not only was the wheat not going to leave his home state, it was not going to leave his farm!  But the Supreme Court ruled that by growing more wheat than allowed, Filburn would not have to buy additional feed in the open market and by not doing so the lack of his consumption of wheat on the market would adversely affect the price of wheat, therefore he was violating the Federally imposed limits.  Now if that doesn’t set off Tenth Amendment alarm bells, I don’t know what could.

Federal Government Sprawl

Here are the cabinet level departments of the Federal Government.  Those in bold seem, in my opinion, to be consistent with the enumerated powers above.  Those in italics seem, again in my opinion, to be a national government overstepping its Constitutional bounds.  It is not that each and any of these things should not be done at all, but according to the Tenth Amendment should be at the discretion of the states or local government.

•  Department of Agriculture
• Department of Commerce
• Department of Defense
• Department of Education
• Department of Energy
• Department of Health and Human Services
• Department of Homeland Security (Incorporate in Department of Defense) 
• Department of Housing and Urban Development
• Department of Justice
• Department of Labor
• Department of State
• Department of the Interior
• Department of the Treasury
• Department of Transportation
• Department of Veteran Affairs (Incorporate into Department of Defense)

 Federalism

 One of the brilliant ideas of federalism is the ability to vote in two ways.  One, is at the ballot box and the other is with your feet.  If my state puts forth a bad idea and the majority of the citizens of my state agree with the bad idea, I have the freedom to move to another state.  However, if we keep moving all these bad ideas up to the national level, my right to vote with my feet is taken away.  If states like California and New York choose to follow polices that lead to their bankruptcy, so be it, but let’s not force those policies on Texas and Florida or force the citizens of those states to pay for the mistakes of Californians and New Yorkers.

Since George Washington, who had four cabinet positions, we have added thirteen new cabinet departments and eliminated two and the ones eliminated did not go away, they simply became part of other government entities (e.g., Navy into Defense; Post Office into Postal Service).  In other words our government is telling us that they have not solved a single problem for which one of these agencies were created since 1789, otherwise why wouldn’t that cabinet department be shut down, after ceremoniously giving all the key players well deserved gold watches?  But Government encroachment marches on with the Obama Administration poised to devour one-sixth of the U.S. Economy into the Department of Health and Human Services.  They tell us they know how to solve that problem.  With their track record do you believe them?  Perhaps it’s time to dust off the Tenth Amendment, and start putting a scalpel to the federal government rather than tying a bib around its bloated neck.

Let’s look to 2010 as the year we start taking back our government.  Polls show how far out of touch our elected leaders are from the views of their constituents.  It’s time to retire them from office.  Let’s keep up the hard work and countdown to November 2010.