Quote of the Day

I was listening to KBUF, our local Agriculture Radio station, yesterday, I heard former President Clinton say something which contradicted what he stated before about ethanol. Pretty amazing when even the Dems start going the other way. Here is the article from the Huffington Post with more info.

If you produce more biofuels, you produce less food. Well, that means food prices will be even higher and we’ll have more food riots.

Up until now, I was called ignorant for believing such a thing. Of course the local Ag Radio had their typical answers, but yet again, the assumption that "We know that the way we produce and consume energy has to change" is just baloney. What needs to change is a return to freedom and liberty.

Vinson vs Obama: Conclusion: Obama Is Lawless

It has been painfully clear that we have a "lawless" President. He not only does things that are illegal, he disregards the authority of the courts when he imposes his own tyrannical orders. If President Bush had done what he has done to the Oil Industry to your (pick you Left-wing favorite), Bush would have been thrown out of office. But as we know, the Constitution only means whatever the Left wants it to mean.

Many have argued that Vinson did not overturn Obama Care since Vinson did not write an injunction. The Media knowing its own spin is ludicrous simply keeps score. It is 2-2, therefore Obama Care stands. This is lawlessness.

Now Vinson did try to NOT strike down the entire law, but only the parts that had to do with forcing Americans to buy Medical insurance. This was simply impossible for a couple of reasons. As stated on page 63,

In considering this issue, I note that the defendants have acknowledged that the individual mandate and the Act’s health insurance reforms, including the guaranteed issue and community rating, will rise or fall together as these reforms “cannot be severed from the [individual mandate].”

In other words, the Obama lawyers admit that the individual mandate is so woven throughout this entire law, it simply cannot be struck down in parts. It must be struck down en Toto.

Unlike the portrayal of Vinson in the Media as some radical legislator from the bench, Vinson attempts to seek "severability" at some points but is not only unable to do so for the first reason, but for an even simpler reason. There are no severability clauses.

First, the Act does not contain a “severability clause,” which is commonly included in legislation to provide that if any part or provision is held invalid, then the rest of the statute will not be affected.

Without severability clauses Vinson must do his homework to see what he may do to save this law. As you can see, he is unable to do so in any sound way as is admitted by the Plaintiffs.

The question of severability ultimately turns on the nature of the statute at issue. For example, if Congress intended a given statute to be viewed as a bundle of separate legislative enactment or a series of short laws, which for purposes of convenience and efficiency were arranged together in a single legislative scheme, it is presumed that any provision declared unconstitutional can be struck and severed without affecting the remainder of the statute. If, however, the statute is viewed as a carefully-balanced and clockwork-like statutory arrangement comprised of pieces that all work toward one primary legislative goal, and if that goal would be undermined if a central part of the legislation is found to be unconstitutional, then severability is not appropriate. As will be seen, the facts of this case lean heavily toward a finding that the Act is properly viewed as the latter, and not the former. [pg 64-65]

Vinson argues that he must determine the intent of Congress to see if he is able to sever the individual mandate. He determines after much argumentation that he can not.

While this inquiry “can sometimes be ‘elusive’” [Free Enterprise Fund, supra, 130 S. Ct. at 3161], on the unique facts of this particular case, the record seems to strongly indicate that Congress would not have passed the Act in its present form if it had not included the individual mandate. This is because the individual mandate was indisputably essential to what Congress was ultimately seeking to accomplish. It was, in fact, the keystone or lynchpin of the entire health reform effort. [pg 66-67]

"Lynchpin" indeed! Vinson believes it is not the duty of the Judicial Branch to rewrite the law [unlike many on the Left].

Severing the individual mandate from the Act along with the other insurance reform provisions --- and in the process reconfiguring an exceedingly lengthy and comprehensive legislative scheme --- cannot be done consistent with the principles set out above. Going through the 2,700-page Act line-by-line, invalidating dozens (or hundreds) of some sections while retaining dozens (or hundreds) of others, would not only take considerable time and extensive briefing, but it would, in the end, be tantamount to rewriting a statute in an attempt to salvage it, which is foreclosed by Ayotte, supra. Courts should not even attempt to do that. It would be impossible to ascertain on a section-by-section basis if a particular statutory provision could stand (and was intended by Congress to stand) independently of the individual mandate. The interoperative effects of a partial deletion of legislative provisions are often unforseen and unpredictable. For me to try and “second guess” what Congress would want to keep is almost impossible. [72-73]

And again on page 74,

If Congress intends to implement health care reform --- and there would appear to be widespread agreement across the political spectrum that reform is needed --- it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not. It is Congress that should consider and decide these quintessentially legislative questions, and not the courts.

Since Vinson has demonstrated that the Law is unConstitutional, and since the individual mandate is impossible to sever, the law is now null and void within the decision itself. He states on page 75,

Injunctive relief is an “extraordinary” [Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S. Ct. 1798, 72 L. Ed. 2d 91 (1982)], and “drastic” remedy [Aaron v. S.E.C., 446 U.S. 680, 703, 100 S. Ct. 1945, 64 L. Ed. 2d 611 (1980) (Burger, J., concurring)]. It is even more so when the party to be enjoined is the federal government, for there is a long-standing presumption “that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction.” See Comm. on Judiciary of U.S. House of Representatives v. Miers, 542 F.3d 909, 911 (D.C. Cir. 2008); accord Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 n.8 (D.C. Cir. 1985) (“declaratory judgment is, in a context such as this where federal officers are defendants, the practical equivalent of specific relief such as an injunction . . .since it must be presumed that federal officers will adhere to the law as declared by the court”) (Scalia, J.) (emphasis added).

To which Vinson concludes,

There is no reason to conclude that this presumption should not apply here. Thus, the award of declaratory relief is adequate and separate injunctive relief is not necessary.

Therefore, there is no need to have an injunction since the court declared it to be unConstitutional! The Media has been outright lying. Now to be certain, they are probably lying because they do not actually do research because from their viewpoint, the Constitution doesn't matter anyway.

Therefore, by definition, Obama is in violation of the Law in the grossest way. We have elected a President that defies the law of the land and the rule of law itself. Since Congress is not going to do something immediately to stop this renegade President, it is now up to the people of our precious Union to be certain that during the next elections, our voice is heard loud and clear.

As we used to say in Boston, "Throw the bums out!"

4-H Topeka Trip

This past weekend I had the privilege of taking the local 4-H group to the Kansas capitol, Topeka. Sunday night the kids participated in a mock legislative process. The second bill was on ethanol. Steven got up and with his allotted brief period of time gave an illustration of the uselessness of ethanol.

In this clip, Amelia and Rachel argue for school consolidation. Unlike everyone's emotional arguments, they actually dealt with cold hard facts.

On Monday, we took the Capitol building tour and sat in on some of the House bills. The kids had their picture taken with the Governor. We watched an immigration debate and we also saw some Kansas Medal of Honor winners be recognized. We all learned a lot of what goes on in Topeka.

Vinson vs Obama: Obama Care Is Outright Dangerous

Now I know I have friends out there who really believe that the Constitution is a thing of wax that the political "victor" gets to interpret anyway he wants. They really believe Obama Care is a good thing for Americans and assume the government is the ultimate authority. It is exactly this point that makes Obama Care so extremely dangerous as I previously noted in my first post.

It is also being argued that Vinson is legislating from the bench. No matter though, President Obama is now officially in contempt of the Federal courts, and so in the end, this may all be a mere exercise in academic futility. The age of the Constitution may have indeed passed with the current lawlessness of this Administration.

With Vinson clearly explaining the Commerce Clause and its historical "jurisprudence" that "has taken some turns," with the fact that it has "contracted and expanded (and contracted and expanded again) during our nation’s development" [page 40], we now turn to Vinson's sound application of the Law. There is certainly no legislating from the bench here. ONLY a biased media could even begin to repeat such nonsense, which is probably why most stories just say it is 2-2 in the Federal courts.

Vinson asks the obvious question,

The threshold question that must be addressed is whether activity is required before Congress can exercise its power under the Commerce Clause. [pg 39]

In a footnote Vinson states,

Indeed, as the plaintiffs have persuasively noted, not even in the context of insurance under the National Flood Insurance Program did Congress mandate that all homeowners buy flood insurance directly from a private company. [pg 39]

In other words, in every case provided on the Commerce Clause activity must be taking place.

But, in every one of the cases --- in both the contractive and expansive --- there has always been clear and inarguable activity, from exerting control over and using navigable waters (Gibbons) to growing or consuming marijuana (Raich).16 In all the cases discussed above, the Supreme Court was called upon to decide different issues (e.g., whether commerce encompassed navigation; whether it included manufacture and agriculture or was limited to trade or exchange of goods; whether the activity at issue was interstate or intrastate and had a direct or indirect effect on commerce; whether that effect was substantial; whether the activity was economic or noneconomic; and whether it was part of a single-subject statute or a necessary and essential component of a broader comprehensive scheme), but it has never been called upon to consider if “activity” is required.

In other words, Obama's argument and interpretation of the Commerce Clause is unique and admits as much. They attempt to say that to say the Federal Government may not regulate inactivity would be novel. Vinson responds in a way that may of us would like to.

First, it is interesting that the defendants --- apparently believing the best defense is a good offense --- would use the words “novel” and “unprecedented” since, as previously noted, those are the exact same words that the CRS and CBO used to describe the individual mandate before it became law. Furthermore, there is a simple and rather obvious reason why the Supreme Court has never distinguished between activity and inactivity before: it has not been called upon to consider the issue because, until now, Congress had never attempted to exercise its Commerce Clause power in such a way before. [pg 41]

Vinson then proceeds to slam a home run over Fenway's Green Monster.

It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting --- as was done in the Act --- that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. [pg 42]

Anything Indeed! This is exactly the warning I offered in the first post. If this clause is to be interpreted in this manner, Congress may not only regulate what motorcycle you ride (or may not ride at all), what car you may buy, how much electricity you consume, etc etc, but it may go much further. Why not regulate how many steaks you eat for dinner, or should you be allowed to have children, or what vocation or career you may choose etc etc..

How does the Left argue with Vinson on this point on page 42?

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” [Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.

So I have a simple question for my friends. Would the Founding Fathers really force such an idea upon its people? The answer ought to be obvious, but knowing their determination to overthrow liberty I am almost afraid to hear their answer. Here are some questions that Vinson poses that should also be sufficient to overthrow any idea that Obama Care is Constitutional.

On page 46 Vinson wrote about the wheat market,

For example, everyone must participate in the food market. Instead of attempting to control wheat supply by regulating the acreage and amount of wheat a farmer could grow as in Wickard, under this logic, Congress could more directly raise too low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market.

Of course, why stop there? Since Obama now owns GM, and since that market has major problems...

Similarly, because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile --- now partially government-owned --- because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business. [pg 46]

Of course everyone needs a home...right?

For example, virtually no one can opt out of the housing market (broadly defined) and a majority of people will at some point buy a home. The vast majority of those homes will be financed with a mortgage, a large number of which (particularly in difficult economic times, as we have seen most recently) will go into default, thereby cost-shifting billions of dollars to third parties and the federal government. Should Congress thus have power under the Commerce Clause to preemptively regulate and require individuals above a certain income level to purchase a home financed with a mortgage (and secured with mortgage guaranty insurance) in order to add stability to the housing and financial markets (and to guard against the possibility of future cost-shifting because of a defaulted mortgage), on the theory that most everyone is currently, or inevitably one day will be, active in the housing market? [pg 47-48]

In conclusion, Vinson recognizes the purpose of our Constitution properly when he notes,

Much of the Constitution is concerned with setting forth the form of our government, and the courts have traditionally invalidated measures deviating from that form. The result may appear “formalistic” in a given case to partisans of the measure at issue, because such measures are typically the product of the era’s perceived necessity. But the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day. . . . [A] judiciary that licensed extra-constitutional government with each issue of comparable gravity would, in the long run, be far worse [than the crisis itself].

So whatever crisis is perceived now, violating the constitution is not the answer. Even Obama admits as much as cited by Vinson,

I note that in 2008, then-Senator Obama supported a health care reform proposal that did not include an individual mandate because he was at that time strongly opposed to the idea, stating that "if a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house.” [page 76]

As should now be as plain as day, this is not about health care. This is about a Federal Left-wing government gaining despotic control over every facet of American lives and the overthrow of personal liberty and freedom. If you still can't see this, then you are in fact blind by your own passions. I will conclude with an article of Obama admitting that Democrats have been trying to take over health care for the last hundred years proving that none of this has to do with current health care costs. Read here.

Vinson vs Obama Care part 2: Definition of Commerce Clause

USA Today reported,

Obama White House officials called the ruling "judicial activism,"and the Justice Department announced it would appeal: "We strongly disagree with the court's ruling today and continue to believe -- as other federal courts have found -- that the Affordable Care Act is constitutional."

It is always funny to hear the Left cry "judicial activism" when that is their very tactic to advance their positions. Not only is the tactic to call Judge Vinson's decision "judicial activism" absurd, it is outright baloney. But the Administration's tactic to ignore Vinson's decision doesn't stop there. They with their Media accomplices cite two cases where Judges have said Obama Care is Constitutional. Therefore, it is OK for the Administration to be in contempt of two Federal court's ruling that say otherwise. And of course we have to throw in some emotional rhetoric that makes no sense at all. As Senior Advisor Stephanie Cutter states in the same article,

the judge's decision puts all of the new benefits, cost savings and patient protections that were included in the law at risk

So what if it is unconstitutional. We want the power and that mean spirited activist judge took away rights from poor people.

If you bother to read the decision, you will see judge Vinson spends quite a few pages offering a historical overview of the Commerce Clause. I believe he does this for three reasons. First, I think he wants to explain the original intent of the Commerce Clause. Second he desires to expose the evolution and expansion that has over time arisen in order to justify the Federal government's accrual of power. Finally, I believe Vinson wants to contrast the arguments put forth by the Administration with what has historically been accepted.

As you will see, Judge Vinson wants to abide by established case law as to the meaning of the Commerce Clause and apply it fairly to Obama Care. But by the Defense's own admission, ObamaCare simply doesn't pass the definitional test. I will summarize the first two points and then look to Administration's understanding as opposed to even the most broad understanding of the Commerce Clause in the next post.

Vinson offers the main reason why the Commerce Clause came into existence.

There is no doubt historically that the primary purpose behind the Commerce Clause was to give Congress power to regulate commerce so that it could eliminate the trade restrictions and barriers by and between the states that had existed under the Articles of Confederation. Such obstructions to commerce were destructive to the Union and believed to be precursors to war. [page 23]

He defines commerce,

The Supreme Court’s first description of commerce (and still the most widely accepted) is from Gibbons v. Ogden, supra, which involved a New York law that sought to limit the navigable waters within the jurisdiction of that state. In holding that “commerce” comprehended navigation, and thus it fell within the reach of the Commerce Clause, Chief Justice Marshall explained that “Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.” 22 U.S. at 72. This definition is consistent with accepted dictionary definitions of the Founders’ time. See 1 Samuel Johnson, A Dictionary of the English Language (4thed. 1773) (commerce defined as “IntercourseAlexander Hamilton intimated in The Federalist, however, it did not at that time encompass manufacturing or agriculture. [page 22]

Now on page 23 there is a footnote that must not be overlooked. It states,

As an historical aside, I note that pursuant to this original understanding and interpretation of “commerce,” insurance contracts did not qualify because “[i]ssuing a policy of insurance is not a transaction of commerce.” Paul v. Virginia...

Insurance is specifically stated not to come under the commerce clause. Imagine that! Vinson goes on to explain the evolution of the definition of the Commerce Clause.Vinson concludes these cases,

...it was not until 1887, one hundred years after ratification, that Congress first exercised its power to affirmatively and positively regulate commerce among the states. And when it did, the Supreme Court at that time rejected the broad conception of commerce and the power of Congress to regulate the economy was sharply restricted. See, e.g., Kidd v. Pearson, supra (1888). Thus, for most of the first century and a half of Constitutional government (with the possible exception of Gibbons v. Ogden in 1824), the Clause was narrowly construed and given “miserly construction.” [page 28]

But then a major shift occurred "in 1937, beginning with the first of three significant New Deal cases." In
N.L.R.B. v. Jones & Laughlin Steel Corp,

...the Supreme Court, after recognizing the well known principle “that acts which directly burden or obstruct interstate or foreign commerce, or its free flow, are within the reach of the congressional power” [see id. at 31], held for the first time that Congress could also regulate purely intrastate activities that could be said to have a “substantial effect” on interstate commerce. “Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control. [page 30]

So now "indirect" activities that take place within a state can be regulated by the Federal government even though they do not directly have to do with interstate commerce. The next two cases simply expand this idea into other activities such as agriculture.

Together, Jones & Laughlin Steel, Darby, and Wickard either “ushered in” a new era of Commerce Clause jurisprudence “that greatly expanded the previously defined authority of Congress under that Clause” [Lopez, supra, 514 U.S. at 556], or they merely “restored” the “broader view of the Commerce Clause announced by Chief Justice Marshall.” [page 32]

There are several more cases that Vinson cites, it is sufficient to say that the United States government has greatly expanded the Commerce Clause to have a wide impact on the powers enumerated to itself. Yet even then the Courts have restrained some of Congress' attempts at their expansion of power. In the case of the United States against Morrison, a challenge to the Violence Against Women Act,

The government argued in that case --- similar to what it did in Lopez --- that Congress could regulate gender-motivated violence based on a syllogistic theory that victims of such violence are deterred from traveling and engaging in interstate business or employment; they are thus less productive (and incur increased medical and other costs); all of which, in turn, substantially affects interstate commerce. [page 34-35]

The Court argued that, "it would require the Court “to pile inference upon inference,” and, in the process, run the risk of 'completely obliterat[ing] the Constitution’s distinction between national and local authority.'”

In conclusion, even with all of the expansion of pwer Congress and the Federal Courts have accrued, the idea of enumerated powers is still in the substance of their arguments. In the end, it may very well be that the concept of "enumerated powers" may have save dus from Obama Care.

In the next post, we will look at Obama Care in light of the current definitions and see if there is any judicial activism truly going on.

Vinson & Obama Care Part 1

Since everyone is talking about the Federal Judge that struck down Obama Care, I thought I'd take the time to read and share some pertinent quotes of this decision (read here). The decision is a great educational tool, and every American should take the time to read decisions that are written as well as this one. It almost seems as though some of these Conservative Judges want the average American to read their decisions and be educated as to how our system works. On the very first page, the Judge Robert Vinson states,

...but it bears repeating again: this case is not about whether the Act is wise or unwise legislation, or whether it will solve or exacerbate the myriad problems in our health care system. In fact, it is not really about our health care system at all. It is principally about our federalist system, and it raises very important issues regarding the Constitutional role of the federal government.

I could not agree more. This is a great way to start off a decision and is a teachable moment to those who oppose liberty and individual freedom in the name of emotional health care arguments. Vinson immediately quotes Madison as to the problem our system naturally runs into in the attempt to frame a Federal Government to which he again cites the Federalist papers,

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

So here is the crux of the argument. Does the Federal government have the enumerated power to take over our health care system or even to regulate it in the fashion they have chosen? Again, the issue is not about health issues or whether or not our system needs reform, but about the Federal government's role in regulating it. As he states on page 3,

As Chief Justice Marshall aptly predicted nearly 200 years ago, while everyone may agree that the federal government is one of enumerated powers, “the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, so long as our system shall exist.”

The issue at stake is the Tenth Amendment and the heart of the Constitutional authority for the Federal government. Vinson makes reference to Marshall,

The Framers believed that limiting federal power, and allowing the “residual”

power to remain in the hands of the states (and of the people), would help “ensure

protection of our fundamental liberties” and “reduce the risk of tyranny and abuse.

I realize that many disagree with Vinson and believe he is legislating from the bench. Many believe in the centralization of the Federal government's powers. But as I think will be seen, the powers that would be granted under Obama Care are extremely dangerous. I would like to use a current political battle as an example.

Right now, certain homosexual groups want to legitimize homosexual behavior and homosexual marriage in the public sphere. If Obama Care is allowed to stand, the Federal government could rightly regulate the sexual practices of the male homosexual. Now I fully realize that President Obama is the most pro-homosexual President ever, but keep in mind, he will not be President forever. What if a radical homosexual hating president becomes elected? What if he decides that homosexual activity is costing the Federal government too much money (or as in the case of marijuana no money at all!)? Under the exact same arguments put forth by Obama's lawyers, the Federal government could make homosexual practices a crime or at least be regulated in some manner. And this does not need a homosexual hating president to actually happen. It could be a mere cost issue. So the very thing homosexuals fear about the so-called radical right wing trying to pass laws that "peek into their bedrooms" will be the very thing Obama Care authorizes.

I will conclude this post with Vinson's next section. Judge Vinson deals mainly with two counts, the Medicaid Expansion (the "coercion" argument) and the Individual Mandate. Vinson dismisses the Medicaid Mandate count relatively quickly by page 13 of a 78 page decision. He explains the issue on page 7,

Preliminarily, I note that in their complaint the state plaintiffs appear to have relied solely on a “coercion and commandeering” theory. Nowhere in that pleading do they allege or intimate that the Act also violates the four “general restrictions” in Dole, nor did they make the argument in opposition to the defendants’ previous motion to dismiss.

This is basically the "coercion" argument. After only 6 pages Vinson concludes,

In short, while the plaintiffs’ coercion theory claim was plausible enough to survive dismissal, upon full consideration of the relevant law and the Constitutional  principles involved, and in light of the numerous disputed facts alluded to above, I must conclude that this claim cannot succeed and that the defendants are entitled to judgment as a matter of law.

So Obama wins at first glance, but then comes the longer half (definitely the bigger half of the candy bar), the Individual Mandate,which we will look at in a future post.

Judge Vinson Strikes Down Obama Care

I have just wasted some hours writing and interacting with Judge Vinson's decision to strike down Obama Care, and this stupid Blogger software thing just wiped out over half my post. I had made clear arguments that Judge Vinson was not being political. Any and all who say he was political (or whatever accusations they have made) have not read his decision or are using typical political rhetoric to advance their agenda despite what the Decision actually says. So I will do this instead. Here is a link to Judge Vinson's decision. It is highly educational and is not that difficult to read. Perhaps later this week, if I have time, I will offer some quotes as to why he struck down the law en toto.