JustOneMinute

Winning!?!

Two columns at the Times engage in a bit of hand-wringing about Obama's healthcare "victory".

James Stewart:

In Obama’s Victory, a Loss for Congress

With the landmark Supreme Court ruling on Thursday, conservatives and libertarians lost their legal battle to overturn the Obama administration’s signature health care legislation. But they may have won a bigger war.

Chief Justice John G. Roberts Jr. ruled that the health care legislation passed constitutional muster, but only under Congress’s broad power to tax. He rejected the widely held expansive view of the commerce clause of the United States Constitution, ruling that it doesn’t give Congress the power to make people buy health insurance — or, for that matter, healthy green vegetables like broccoli.

“Under the government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables,” the chief justice wrote. “That is not the country the framers of our Constitution envisioned.”

Libertarians declared victory.  “We finally won a three-decades-long battle over the commerce clause,” John Eastman, a conservative constitutional scholar and a professor at Chapman University, told me hours after the court’s decision.

Neil Katyal:

A Pyrrhic Victory

THE obvious victor in the Supreme Court’s health care decision was President Obama, who risked vast amounts of political capital to pass the Affordable Care Act. A somewhat more subtle victor, but equally important, was the rule of law more generally: in an era when so many people on the left and right view the justices, and constitutional questions, through the prism of politics, the court today made clear that law matters and that it isn’t just politics by other means.

But there was a subtle loser too, and that is the federal government. By opening new avenues for the courts to rewrite the law, the federal government may have won the battle but lost the war.

The former Solicitor General and Gore advisor concludes with this punchline:

Time will tell whether today’s decision foreshadows things to come. But one thing is apparent: Americans are growing increasingly comfortable, if not always happy, with the idea of nine men and women in Washington handing down rulings that remove decisions from the legislative process or even rewrite legislation altogether.

Uh huh. And when those decisions relate to gay marriage or abortion, they are met with 'huzzas' from the left.

 

 

Who Is Furious Now?

Congressman Issa slides excerpts from court-sealed wiretap aplications into the Congressional record as part of the Fast and Furious maneuvering.

Roll Call has excerpts and explains why it is legal:

The wiretap applications are under court seal, and releasing such information to the public would ordinarily be illegal. But Issa appears to be protected by the Speech or Debate Clause in the Constitution, which offers immunity for Congressional speech, especially on a chamber’s floor.

For those for whom excerpts just won't suffice, the June 28 Congressional Record is here (448 page .pdf). The May 24 letter from Issa to Cummings (whoich contains the excerpts) starts in the middle column of page 251/448.

Zimmerman Back In Court Today

George Zimmerman has his bond hearing today, but at what time? Now!

SANFORD, Fla. — A judge will weigh several factors Friday in deciding whether to set bond for the man who fatally shot unarmed teen Trayvon Martin.

The hearing began at 9:30. So far, all I have heard is a lot of back and forth about the PayPal account.

MUCH LATER: Did Mark O'Mara say he now knows the case well and then attribute the statement of Witness 6 (John) to Witness 9?

Cboldt is covering this at TalkLeft.

YIKE: Prosecutor De la Rionda claims he has a strong case based on the shadow witness.  Witness 2 was never credible, since she admitted she saw basically nothing with her contacts out.

POST GAME: O'Mara is speaking to the press outside and expects a decision in a few days. He explains that the judge was given a lot of evidence to review.

The Morning After

Randy Barnett surveys the new constitutional landscape he helped to create:

This is a bittersweet day for our Constitution and the system of federalism it established. First the sweet: today the Supreme Court reaffirmed that Article I of the Constitution does provide limits on the powers of Congress that are enforceable in the courts.

In his majority opinion, Chief Justice John Roberts accepted all of our arguments about why the individual insurance mandate exceeded the Commerce Clause: “The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause,” he wrote. “That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.”

 

Let's Play Two! On To Holder

My heart is not really in it, but let's try to split the twinbill.

TUNE IN, TURN ON: Live video of whatever the Congresscritters are up to now. "Yea" has a majority at 2:05 PM, but I don't know what specifically they are voting on.

Ahh! They are voting on House Resolution 708, and we congratulate Nancy Goodman Brinker for receiving the Presidential Medal of Freedom.  Oh, wait...

House Calendar No. 141 112th CONGRESS 2d Session

H. RES. 708 [Report No. 112-553]

Relating to the consideration of House Report 112-546 and an accompanying resolution, and providing for consideration of the resolution (H. Res. 706) authorizing the Committee on Oversight and Government Reform to initiate or intervene in judicial proceedings to enforce certain subpoenas.

This looks like the big one (but it's not!):

H. RES. 706

Authorizing the Committee on Oversight and Government Reform to initiate or intervene in judicial proceedings to enforce certain subpoenas.

Listening in, I think I heard that H Res 711 was the contempt motion.

Let's Tax The Servers Here

Let's have a new "Why I No Longer Love John Roberts" open thread. Opinion here.

All this action will tax the internet servers, but not for inactivity.

Roberts specifically offers an example of taxing 'inactivity' that he claims would pass muster:

An example may help illustrate why labels should not control here. Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is paid along with the taxpayer’s income tax return. Those whose income is below the filing threshold need not pay. The required payment is not called a “tax,”a “penalty,” or anything else. No one would doubt that this law imposed a tax, and was within Congress’s power to tax. That conclusion should not change simply because Congress used the word “penalty” to describe the payment. Interpreting such a law to be a tax would hardly “[i]mpos[e] a tax through judicial legislation.” Post, at 25. Rather, it would give practical effect to the Legislature’s enactment.

 A bit later he tackles the apparent paradox that Congress cannot regulate inactivity but can tax it:

There may, however, be a more fundamental objection to a tax on those who lack health insurance. Even if onlya tax, the payment under §5000A(b) remains a burden that the Federal Government imposes for an omission, not an act. If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstainfrom commerce, perhaps it should be similarly troubling topermit Congress to impose a tax for not doing something.

Three considerations allay this concern. First, and most importantly, it is abundantly clear the Constitution does not guarantee that individuals may avoid taxation throughinactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated by the Constitution. The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes. See Letter from Benjamin Franklin to M. Le Roy (Nov. 13, 1789) (“Our new Constitution is now established . . . but in this world nothing can be said to be certain,except death and taxes”).

Whether the mandate can be upheld under the Commerce Clause is a question about the scope of federal authority. Its answer depends on whether Congress can exercise what all acknowledge to be the novel course of directing individuals to purchase insurance. Congress’suse of the Taxing Clause to encourage buying something is, by contrast, not new. Tax incentives already promote, for example, purchasing homes and professional educations. See 26 U. S. C. §§163(h), 25A. Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchasing health insurance, not whether it can. Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one.

Second, Congress’s ability to use its taxing power toinfluence conduct is not without limits. A few of our cases policed these limits aggressively, invalidating punitive exactions obviously designed to regulate behavior otherwise regarded at the time as beyond federal authority.See, e.g., United States v. Butler, 297 U. S. 1 (1936); Drexel Furniture, 259 U. S. 20. More often and more recently we have declined to closely examine the regulatory motiveor effect of revenue-raising measures. See Kahriger, 345
U. S., at 27–31 (collecting cases). We have nonetheless maintained that “‘there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.’” Kurth Ranch, 511 U. S., at 779 (quoting Drexel Furniture, supra, at 38).

We have already explained that the shared responsibility payment’s practical characteristics pass muster as atax under our narrowest interpretations of the taxing power. Supra, at 35–36. Because the tax at hand is within even those strict limits, we need not here decide the precise point at which an exaction becomes so punitivethat the taxing power does not authorize it. It remains true, however, that the “‘power to tax is not the power to destroy while this Court sits.’” Oklahoma Tax Comm’n v. Texas Co., 336 U. S. 342, 364 (1949) (quoting Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218, 223 (1928) (Holmes, J., dissenting)).

Third, although the breadth of Congress’s power to taxis greater than its power to regulate commerce, the taxingpower does not give Congress the same degree of controlover individual behavior. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes.
By contrast, Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punish individuals subject to it.

...

The Federal Government does not have the power toorder people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose atax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.

I DON'T WANT TO READ ON: Scalia, Thomas, Alito and Kennedy join the dissent calling for the overturn of the whole act. But wait! Per the Volokh rumor mill, this "dissent" started out as the majority opinion until Roberts jumped ship over the tax argument. The key evidence is that in the Scalia dissent he refers to the Ginsburg "dissent", even though she was in the majority (p 139 .pdf):

A few respectful responses to JUSTICE GINSBURG’s dissent on the issue of the Mandate are in order...

Hmm, they say their response is respectful but I am not sure they meant it:

The dissent’s exposition of the wonderful things the Federal Government has achieved through exercise of its assigned powers, such as “the provision of old-age and survivors’ benefits” in the Social Security Act, ante, at 2, is quite beside the point. The issue here is whether the federal government can impose the Individual Mandate through the Commerce Clause. And the relevant history is not that Congress has achieved wide and wonderful results through the proper exercise of its assigned powers in the past, but that it has never before used the Commerce Clause to compel entry into commerce.3 The dissent treats the Constitution as though it is an enumeration of those problems that the Federal Government can address—among which, it finds, is “the Nation’s course in the economic and social welfare realm,” ibid., and more specifically “the problem of the uninsured,” ante, at 7. The Constitution is not that. It enumerates not federally soluble problems, but federally available powers. The Federal Government can address whatever problems it wants but can bring to their solution only those powers that the Constitution confers, among which is the power to regulate commerce. None of our cases say anything else. Article I contains no whatever-it-takes-to-solve-a-national problem power.

USELESS WAVE OF NOSTALGIA: Here is the text of Obama explaining to George S that the mandate is not, nay, no never a tax. Steve Benen provides the pom poms on the left.

BACK IN TIME: Back when Dems were insisting the mandate was not a tax they were also touting the lack of enforcement of the mandate.

Thursday ObamaCare Death Watch

Voyeurs and scholars are gathering at the bedside...

ScotusBlog will have the death (or life!) live. The Supreme Court website will have the opinions shortly after they are released.

My prediction is pain. Also, confusion.

FOX: Mandate is unconstitutional.

SCOTUSBLOG: Mandate survives as a tax.  OK, puzzling.

SCOTUSBLOG: "It's complicated".

SB: Mandate lives! Roberts joins left. [link]

ROVE ON FOX: If the mandate survives as a tax that probably enhances the controversy over the bill.

SB: "Tom: The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read."

OK, my prediction held up.  On to showing contempt for Holder!

SHORTER ROBERTS: Congress cannot regulate inactivity under the Commerce Clause but it can tax inactivity under their taxing powers.  Because that makes sense...

Vox Populi

Overturning the ObamaCare mandate polls well. [Full poll.]

THIS I BELIEVE: Right now someone is working on updating the video of Hitler learning that ObamaCare has been repealed. I say they may as well release it tonight so that we can enjoy it right now even if a new dawn brings, well, a new dawn for ObamaCare.

I SUPPOSE I ALSO BELIEVE... Someone somewhere must be working on Hitler learning that ObamaCare has been upheld.  I don't think I will find that one quite as amusing. No, in fact, I am sure I won't.

And What About Them Thunders?!?

The First Elocutionist strikes again:

Obama Hails The ‘Miami Heats’

When I was a much younger man, naming all the professional teams whose name did not end in "S" was a manageable trivia question. Both "Sox" and the Jazz were on the short list, and I forget the rest.

Now, who knows? But I wonder if the Heat-Thunder final was the first No-S championship in a major professional sport?

GOOD POINT: myiq2xu asks "Are you sure the press corpse heard him correctly?"

SPOILER ALERT: The Red Sox never met the White Sox in the World Series, obviously. In the NBA, the Jazz and the Magic never met in the Finals. In the NHL, the Stanley Cup was contested in int amateur days by various matchips of clubs and universities, but in the NHL the Avalanche haven't met the Lightning. And the NFL Super Bowl list offers nothing.

The Providence Steam Roller won the 1928 NFL Championhip, but they won based on best record.

OK, I think Obama has called out attention to an interesting factoid. Unless soccer fans want to chime in. Or Japanese baseball...

NOT EXACTLY 'MAJOR', BUT... The 1984 Chicago Sting v. the Toronto Blizzard.  Trivia fans can guess the sport.

Make Stuff Up Faster, Time Is Running Short!

Ezra Klein resorts to fan fantasy and fiction to defend the ObamaCare mandate in what may (fingers crossed!) be its final hours.

He offers two examples of "mandates" implemented by the founding fathers. The first was a requirement that men between the ages of eighteen and forty-five equip themselves properly for deployment in the local militia.  Obviously, that is not an exercise of the Commerce Clause.

The second example is a "mandate" to buy "hospital insurance" with the caveat that "mandate" means "payroll tax" and "hospital insurance" means "Federally funded and sponsored hospitals".

The current fantasy, as presented by Einer Elhauge, a professor at Harvard Law, and excerpted by Ezra:

In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.[...]

Six years later, in 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. And you know what this Congress, with five framers serving in it, did? It enacted a federal law requiring the seamen to buy hospital insurance for themselves. That’s right, Congress enacted an individual mandate requiring the purchase of health insurance. And this act was signed by another founder, President John Adams.

Uh huh.  Here is the text of the act.  It is a payroll tax with the proceeds paid to the government (not private hospitals or insurers). The funds are to be used by the government to build and/or pay for hospitals to care for sailors. (The boat owner is responsible for all record-keeping and payments, although he is authorized to retain the amounts from his sailor's pay.)

Gosh, if Obama had wanted to fund ObamaCare with a payroll tax, would that have been Constitutional?  It would have been like... like... like Medicare!

Of course, Obama had promised not to actually raise taxes on anyone earning less than $250,000, so that road was closed. And any citizen determined to avoid that payroll "mandate" could simply stop working.

It's fun that libs are dusting off their history, but they really need to find some analogous analogies.

FROM CENTURIES AGO:

Wth July, 1798.

CHAP. [94.] An act for the relief of sick and disabled seamen.

 Be it enacted, Sfc. That from and after the first day of September next, the master or ownerof every ship or vessel of the United States, arriving from a foreign port into any port of theUnited States, shall, before such ship or vessel shall be admitted to an entry, render to thecollector a true account of the number of seamen that shall have been employed on board such vessel since she was last entered at any port in the United States, and shall pay, to the saidcollector, at the rate of twenty cents per month for every seaman so employed ; which sum he ishereby authorized to retain out of the wages of such seamen.

...

§ 3. That it shall be the duty of the several collectors to make a quarterly return of the sumscollected by them, respectively, by virtue of this act, to the secretary of the treasury ; and thepresident of the United States is hereby authorized, out of the same, to provide for the temporaryrelief and maintenance of sick, or disabled seamen, in the hospitals or other proper institutions now established in the several ports of the United States, or in ports where no such institutions exist, then in such other manner as he shall direct: Provided, that the moneys collected in anyone district, shall be expended within the same...

Incredibly, the act does not run on for another two thousand pages. Five paragraphs in all, actually.

Let's Stress On Zimmerman

A differently redacted version of the Sanford PD police report is out. George Zimmerman passed the Voice Stress test with "No Deception Indicated".  Deep in the report are the questions and Yes/No answers:

Well, I guess the walls aren't green in the Sanford PD.  And Zimmerman has never exceeeded the speed linit?  Somebody pull his traffic record and maybe we can add a False Statements charge to the Murder Two.

A key question is "Did you confront the guy you shot?".  Obviously, in one sense Zimmerman did, since there was obviously a confrontation.  Zimmerman took the question as "Did you initiate the confrontation...", which is a fair interpretation of what the interviewer actually meant.  Still, with this short a script, why not ask clear questions?

And Zimmerman passed on "Were you in fear of your life...", which will be helpful for the defense.

Eventually lead investigator [Sorry, former lead investigator] Serino recommends a manslaughter charge.

ILLOGIC: This report provides the theme followed by the eventual arrest warrant - if Zimmerman had stayed in his car or spoken politely to Martin the whole incident could have been avoided. I still don't see how Zimmerman's lack of perfect manners justifies Martin's violent assault, but the Florida prosecutors will have an opportunity to expand on that concept.

The report also shows absurdist logic when it confronts the Fear Factor. Zimmerman had explained that when Martin walked up to and circled his car, Zimmerman had rolled up the window rather than identify himself as a neighborhood watcher because he was afraid of Martin.  Silly George!  The report goes on to explain that upon subsequent investigation, Martin and Zimmerman were of comparable size and neither had martial arts training, so this was not a bad match-up for George and his lapse of neighborly manners was unwarranted. Unfortunately, the report does not explain how Zimmerman was supposed to assess Martin's martial arts background while sitting in his car in the rain.

Eventually Martin runs off so Zimmerman gets out of his car to see where he went.  The Sleuths of Sanford jump on this contradiction! How could a man who was afraid of a guy who was closing to within a few feet suddenly master his fear when the same scary guy is no longer visible?

Fortunately, the defense will have plenty of time to come up with an answer to that. (Hmm - did the investigators notice a can of spinach lying near the curb?)

VOICE STRESS ANALYSIS: OK, maybe the walls are green and Zimmerman has exceeded the speed limit (my emphasis):

The simple act of being accused of a crime is very likely to result in a stress response on the part of the suspect. Hence Backster (1963) developed a questioning protocol for use with the polygraph known as the Control Question Test (CQT). Through research a variant of the CQT has evolved, known as the Directed Lie Test (DLT) (Horiwitz, 1997). The premise of both protocols is to have a set of questions that would be likely to elicit stress responses in innocent suspects more than in guilty ones.

The difference between the two sets of questions is, the DLT questions are ones which explicitly tell the participant give a deceptive response. The CQT is a set of questions known as the Control Questions, also referred to as probable lie questions. These are questions that are designed in such a way that no one can say “no” without lying (i.e. Before today have you ever taken something that did not belong to you?). It is then the task of the polygraph examiner to get the suspect to say “no” they have never done that.

It is then proposed that an innocent person will be more stressed about those questions (DLT/CQT) and less about the question regarding the crime; thereby accommodating for the stress of an innocent person being accused.

Still Looking For An Exit Strategy In The Global War On Drugs

I don't think this will be fast-tracked in Washington, but...

'War on drugs' is fueling HIV epidemic: report

A pressure group that includes six former presidents called Tuesday for the United Nations to acknowledge that "repressive drug law enforcement" was driving an HIV/AIDS pandemic.

The global "war on drugs" was forcing users away from treatment and into environments where the risk of contracting HIV was high, the Global Commission on Drug Policy (GCDP) argued.

Here is the GCDP website, their news release, and the English version of their report. The news release gives a quick sense of the improbability of their recommendations:

Six Former Presidents, Richard Branson and Other World Leaders: Criminalization of Drug Use Fuels the Global HIV/AIDS Pandemic

June 26, 2012

Global Commission Calls for Drug Decriminalization and Expansion of Proven, Cost-Effective Solutions to Reduce HIV/AIDS – Including Sterile Syringe Access, Safer Injection Facilities, and Prescription Heroin Programs

While Some Countries Have Virtually Eliminated Drug-Related HIV Transmissions, Drug War Policies in U.S., Russia, Thailand and China Cause Millions of Needless Infections and AIDS Deaths

Today, the Global Commission on Drug Policy will release a groundbreaking report at a press conference in London followed by a worldwide teleconference. The report condemns the drug war as a failure and recommends immediate, major reforms of the global drug prohibition regime to halt the spread of HIV infection and other drug war harms.

...The report also depicts how the fight against HIV is being won in countries where addiction is treated as a health issue. In Australia and European countries such as Portugal and Switzerland,  newly diagnosed HIV infections have been nearly eliminated among people who use drugs, just as vertical transmission of HIV has been eliminated in countries where broad access to prevention of mother-to-child transmission of the virus is available. However, a number of specific countries, including the U.S., China, Russia and Thailand, have ignored scientific evidence and resisted the implementation of evidence-based HIV prevention programs – with devastating consequences. In Russia, for example, approximately one in one hundred adults is now infected with HIV. In the United States, Congress recently re-instated a longstanding ban on the use of federal funds for syringe exchange programs.

Unfortunately, when the topic is the drug war there is a chasm between being right and being relevant.

Fast And Furious, Now With OCDETF

Andrew McCarthy explains Fast and Furious and its place in OCDETF.

A poll suggests that Obama's invocation of executive privilege is not a political winner.

Zimmerman Bond Motion

From the Zimmerman defense website we get the motion for reasonable bond. The hearing is this Friday.

It is a five page brief; the legal gist is this:

The theory is that, although Murder Two is a capital offense, the evidence is not overwhelming, George Zimmerman is not a threat to the community, he won't be out trying to intimidate witnesses, and he has had a good record of cooperating with law enforcement up to now. As to flight risk, possible perjury (and clear disingenousness) by the wife does mean George Zimmerman is more likely to flee.

Or so the defense will argue.

Split Decision In 'Arizona'

The Arizon immigration law was upheld in part and struck down in part. The headlines at the WSJ and NY Times:

Supreme Court Upholds Key Part of Arizona Law [since revised to "Supreme Court Allows Immigration Checks"]

Supreme Court Upholds Key Part of Arizona Law [since revised at the NY Times to "Supreme Court Rejects Part of Arizona Immigration Law"; see below]

Let's stay with the WSJ:

The Supreme Court upheld a key part of Arizona's tough-immigration law but struck down others as intrusions on federal sovereignty, in a ruling that gave both sides something to cheer in advance of November elections where immigration is a major issue.

The court backed a section of the Arizona state law that calls for police to check the immigration status of people they stop.

That section was one of four at issue before the high court. The others make it a crime for immigrants without work permits to seek employment, make it a crime for immigrants to fail to carry registration documents, and authorize the police to arrest any immigrant they believe has committed a deportable offense. Those other three provisions were struck down.

TWO PAPERS IN ONE!

The Times has something for everyone. On the home page, they tell us that "Justices Upholds Key Part of Arizona Law". The linked article has a revised headline:

Supreme Court Rejects Part of Arizona Immigration Law

Here is the home page alternative:

And over at Memorandum, they commemorate the original Times version by John Cushman:

No big deal, but sometimes it is fun to watch the sausage factory.

Ask An Open Question...

Gallup headlines this:

Many Americans Can't Name Obama's Religion

Majority guess he is Christian, 11% say Muslim

However! The question was open ended rather than multiple choice. I would hope that if asked, I would have gone with "Protestant" or "Christian". However, if my Inner Pedant were responding, "Don't Know" might have come up since I have no idea what Protestant denomination Obama might be associating himself with these days, or ever.

So it strikes me as plausible that "Don't Know" includes a lot of folks who would have picked "Protestant" if prompted.

AND BTW: Did the pollsters provide a a breakdown between "Sunni", "Shi'ite", and "Other Muslim"? 

Monday Morning

We are battling the glitches just now.

Sunday Morning

Clarice Feldman could substitute for a cup of coffee, although I say, "Why not both?!?"

HAIL THE KING: If there is anyone still hating on LeBron after his monumental playoff effort, let's reprise another of his good moments in OKC:

Reports the Oklahoman and Sun-Sentinel: “During a recent trip to Portland, the Heat had a layover at OKC’s Will Rogers World Airport. According to an airport worker, LeBron James roused his teammates for photos with military personnel. He noticed a couple of uniformed military personnel approach the team’s security person [...] Just like the Heat players, the helicopter pilots were in the terminal stretching their legs. They never expected the Miami Heat to walk through the door. Some of them wanted pictures with the players, but when the crew members approached the team’s security detail, they were told no. Maybe LeBron could overhear the conversation, or perhaps he could just tell by their body language what was going on. Either way, he piped up. ‘Hey, hey,’ he said, ‘any of these military guys can take a picture with us.’ He turned to his teammates. ‘You guys get up,’ he told them. He turned to the servicemen. ‘Get your camera up,’ he said. He started to wave the servicemen over but noticed that some of the players weren’t yet on their feet. ‘Hey, everybody get up,’ he said. ‘Get in a circle here. Anybody that wants their picture taken with us, we’ll do it.’ And that’s exactly what they did. Any of the four or five dozen helicopter crewmen who wanted a photo got one. Not all of them did, but LeBron and his teammates posed with each and every one of them who asked. When those pilots and crewmen walked out of the terminal and back across the tarmac, they had big ol’ smiles on their faces. 

Leadership that's working.

Oh, let's have one more feel-good sports story, even though there is a lot less star power involved.

Giving The Gift Of Four More Years

Team Obama pulls out all stops in their fundraising:

Got a birthday, anniversary, or wedding coming up?

Let your friends know how important this election is to you—register with Obama 2012, and ask for a donation in lieu of a gift. It’s a great way to support the President on your big day. Plus, it’s a gift that we can all appreciate—and goes a lot further than a gravy bowl.

That would be a heck of an anniversary present.  Good luck with that, guys.

 

Secretariat - Greatest Race Horse Ever!

How great was Secretariat? He set a Preakness record earlier this week for a race he won in 1973.

That gives him the Kentucky Derby, Preakness and Belmont records.

That Much?

From the Times:

Euro Leaders Agree to Push for Stimulus Package

By STEPHEN CASTLE

ROME — Leaders from the leading euro zone economies pledged Friday to reinforce the single currency and to push together for a 130 billion euro program to stimulate economic growth.

After a two-hour meeting here, the leaders of France, Germany, Spain and Italy also pledged to give a clearer, more comprehensive vision of the future, while acknowledging the serious crisis sweeping the Continent.

“The 130 billion euros is a strong signal,” French President Francois Hollande said at the news conference following the private meeting, and is part of “a road map that presupposes fiscal and banking union.”

Geez, I hope they don't spend it all in one place.

Faster And Furiouser

The WaPo ruminates about Obama's use of executive privilege. The NY Times is not nearly as deep in the tank for Obama as might have been expected. Yes, this is characterized as a "partisan fight", but here is there summary:

The Republican takeover of the House after 2010 gave Mr. Issa a platform to investigate the Obama administration, which he has called the “most corrupt” in history. A critic of Mr. Holder from the start of his chairmanship, Mr. Issa focused on Fast and Furious, a gun trafficking inquiry by the Phoenix division of the Bureau of Alcohol, Tobacco, Firearms and Explosives.

From late 2009 to early 2011, A.T.F. agents allowed guns to “walk” — choosing not to interdict them swiftly in an effort to build a bigger case. But they lost track of about 2,000 guns that probably reached a Mexican drug cartel. Two of the weapons were found near a December 2010 shootout at which a Border Patrol agent, Brian Terry, was killed. It has since come to light that the bureau had used similar tactics three times during the Bush administration, although it lost track of fewer weapons.

Mr. Holder, a recurring lightning rod for conservative anger, has repeatedly tangled with House Republicans and been associated with some of the administration’s most liberal policies, including refusing to defend a law barring federal recognition of same-sex marriages, challenging an Arizona law cracking down on illegal immigrants and invoking civil rights laws to block Republican-led efforts to impose voter photo ID laws.

Mr. Issa’s inquiry has drawn extensive attention from conservative news outlets, including Fox News, and set off a drumbeat of enthusiasm among conservative bloggers and on social media over the prospect of bringing down Mr. Holder over it. “It’s clear that not backing down is important to both sides,” said Bruce Buchanan, a political science professor at the University of Texas at Austin.

Mr. Issa was initially seeking a broad range of documents, including some that were sealed by court order. But the contempt citation is more narrowly focused on internal Justice Department deliberations last year amid the Congressional investigation.

The administration has already released a similar set of documents from before Feb. 4, 2011, showing how it drafted an early letter that falsely told Congress that A.T.F. always made every effort to interdict guns, which the department later retracted. Those documents showed that employees in Arizona had insisted to the officials who drafted the letter that no guns had walked in Fast and Furious.

The administration said it was making an exception for release of the pre-Feb. 4 documents to show that it had not deliberately misled Congress, but that it would not turn over records of internal deliberations after that. Republicans, however, insist they have a right to see those too.

They at least mention the retracted Feb 4 letter. The Mukasey retraction/clarification goes unremarked. Apparently Holder claimed former AG Mukasey had been briefed on Wide Receiver but he meant Hernandez.

MORE: Matt provides lots of background.

Meanwhile, Over At The Supreme Court...

No Immigration, no ObamaCare. The ScotusBlog had live coverage. The new opinions (and some older 'new' ones) are at the Supreme Court website.

 

Zimmerman - The Video

A new evidence dump at GZLegalCase.com  includes the video of George Zimmerman re-enacting his account of the fatal incident to the Sanford police.

Zimmerman's written statement is here. No big surprises, but he begins with the August home invasion and claims the intruders "attempted to atack" resident and her child. my *recollection* from the police report is that the woman hid in the upstairs bathroom and I don't recall an attempted attack, but it has been a long spring. Not to mention, it hardly matters - the woman was surely terrified, so Zimmerman had that right.

WHERE HAS THE LOVE GONE? When you have lost the Times... Lizette Alvarez and Timothy Williams review the evidence dump and come away with this:

As Mr. Zimmerman retells his version of events in the days after the shooting, the story remains essentially consistent, although some of the language varies.

Oops. At the Zimmerman bond hearing the state had led us to believe that Zimmerman's multiple statements contradicted each other.  Well, they had more time to study that than the Times did.  Or something.

Here is a bit of the hearing; I presume the speaker is State prosecutor Bernie De la Rionda:

UNIDENTIFIED MALE: But -- and I'm going to get into every little contradiction but wouldn't you agree that a lot of his statements can be contradicted by the evidence either witnesses or just based on what he says himself?

And let me add - that was very shrewd of Zimmerman to repeatedly claim that he had screamed for help. I guess he was anticipating a few earwitnesses, but he never could have guessed a 911 caller would also get the screaming on tape.

I guess the prosecution theory is that Zimmerman was so cool in the moments after the scuffle that he recognized and acted upon the need to concoct a story that would explain Martin's screaming. Really? And re-told the invented story on multiple occasions? And was lucky enough to have a witness ('John') see Zimmerman screaming?

Now, as of April we have pretty clear evidence (based on the bank/bond scam) that Zimmerman had a reduced faith in the criminal justice system. But where is the evidence that on Feb 26 Zimmerman had no confidence in the law?

Executive Privilege

Obama invokes executive privilege to shield Holder in the Fast and Furious investigation.

Sen. Grassley has a question:

Sen. Chuck Grassley, ranking member of the Senate Judiciary Committee, asked how Obama could assert executive privilege "if there is no White House involvement?"

A spokesman for House Speaker John Boehner said Obama's move "implies that White House officials were either involved in the 'Fast and Furious' operation or the cover-up that followed."

Brush on your Watergaqte and everything after! My quick read of this 2008 Congressional Research review of executive privilege (re: Espy) seems to indicate that the President or his top White House staff need to be involved to assert executive privilege:

Turning to the chain of command issue, the court held that the presidential communications privilege must cover communications made or received by presidential advisers in the course of preparing advice for the President even if those communications are not made directly to the President. The court rested its conclusion on “the President’s dependence on presidential advisers and the inability of the deliberative process privilege to provide advisers with adequate freedom from the public spotlight” and “the need to provide sufficient elbow room for advisers to obtain information from all knowledgeable sources.”101 Thus the privilege will “apply both to communications which these advisers solicited and received from others as well as those they authored themselves. The privilege must also extend to communications authored or received in response to a solicitation by members of a presidential adviser’s staff.”102

The court, however, was acutely aware of the dangers to open government that a limitless extension of the privilege risks and carefully cabined its reach by explicitly confining it to White House staff, and not staff in the agencies, and then only to White House staff that has “operational proximity” to direct presidential decisionmaking.

Well, litigating this should kick the can past November, which is surely the key Admin objective. The CRS has more:

The District of Columbia Circuit’s 2004 decision in Judicial Watch, Inc. v. Department of Justice110 appears to lend substantial support to the above-expressed understanding of Espy. Judicial Watch involved requests for documents concerning pardon applications and pardon grants reviewed by the Justice Department’s Office of the Pardon Attorney and the Deputy Attorney General for consideration by President Clinton.111 Some 4,300 documents were withheld on the grounds that they were protected by the presidential communications and deliberative process privileges. The district court held that because the materials sought had been produced for the sole purpose of advising the President on a “quintessential and nondelegable Presidential power” — the exercise of the President’s constitutional pardon authority — the extension of the presidential communications privilege to internal Justice Department documents which had not been “solicited and received” by the President or the Office of the President was warranted.112 The appeals court reversed, concluding that “internal agency documents that are not solicited and received by the President or his Office are instead protected against disclosure, if at all, by the deliberative process privilege.”113

This seems to favor Grassley, but I am not a Constitutional lecturer like Obama.

Say Anything

MSNBC edits Romney to make him look silly. They forgot that in 2012 everybody has a video camera, so the full clip was available elsewhere. And who looks silly now?

The New Obama Book

The David Maraniss bio of Obama has hit the bookshelves. It ends with Obama heading off to Harvard Law School, so my secret hope was that it wold shed some light on Obama's first fling with education reform, as described in 'Dreams' just before he left Chicago:

"The months passed at a breathless pace, with constant reminders of all the things left undone.  We worked with a citywide coalition in support of school reform."

The timing is opaque but eventually Obama's little non-profit ended up in a city-wide alliance that was eventually led by Bill Ayers. That might explain how Obama came to chair the Chicago Annenberg Challenge organized by Bill Ayers years later.

Or not. The name "Ayers"does not appear in the Maraniss index, so my hopes seem to be quashed. Or at best, hanging by a thread.

Zimmerman Transcripts

Now we have tapes and transcripts for the jail house chats between George Zimmerman and his wife.

Roger Clemens Acquitted

Clemens acquitted on all charges. Doesn't mean he's innocent, of course, but I bet "Not Guilty" works for him right now.

Happy Father's Day

If it's Sunday it's time for Clarice's Pieces.

And There Go The Catholics!

ObamaCare, which may end up on the dustbin of history in the next few weeks, took a delayed hit today on its 'free contraception' plan:

The head of the Catholic hospitals trade group reversed her support for the Obama administration’s proposed compromise on a controversial requirement that employers cover contraception in workers’ health plans.

Sister Carol Keehan, head of the Catholic Health Association, was the most high-profile Catholic to speak in support of President Barack Obama‘s February announcement that the federal government would allow religious employers that object to the use of birth control to turn over responsibility for covering it for their workers to insurance companies.

That train has been coming down the tracks for months. But let's flash back to early Times coverage of Obama's keen political maneuvering:

WASHINGTON — For the White House, the decision announced Friday to soften a rule requiring religious-affiliated organizations to pay for insurance plans that offer free birth control was never really driven by a desire to mollify Roman Catholic bishops, who were strongly opposed to the plan.

Rather, the fight was for Sister Carol Keehan — head of an influential Catholic hospital group, who had supported President Obama’s health care law — and Catholic allies of the White House seen as the religious left. Sister Keehan had told the White House that the new rule, part of the health care law, went too far.

And the "compromise" still goes too far.  Oops!

ERRATA: Let's go back to last February and an explanation from Andrew Sullivan as to how shrewdly Obama positioned this.

 

Who Is Misinformed Now?

Last fall I mocked a Fairleigh Dickinson poll that concluded that Fox viewers were distinctively misinformed about foreign affairs. From a HuffPo summary:

Fox News Viewers Know Less Than People Who Don't Watch Any News: Study

Fox News viewers are less informed than people who don't watch any news, according to a new poll from Fairleigh Dickinson University.

The poll surveyed New Jersey residents about the uprisings in Egypt and the Middle East, and where they get their news sources. The study, which controlled for demographic factors like education and partisanship, found that "people who watch Fox News are 18-points less likely to know that Egyptians overthrew their government" and "6-points less likely to know that Syrians have not yet overthrown their government" compared to those who watch no news.

The specific poll question was this:

To the best of your knowledge, have the opposition groups protesting in Egypt been successful in bringing down the regime there?

They asked about "the regime", not Mubarak. As I said back then, Mubarak was arguably the front man for a regime which still held power. And based on recent headlines, the notion that the regime has been overthrown is even less plausible.

But who knew?

WE INTERRUPT THIS SNEERING to segue to some gloating - in the May 2012 follow-up, the question was changed to specifically mention Hosni Mubarak.

“Take Care That The Laws Be Faithfully Executed”

John Yoo, who knows a bit about the assertion of Executive Branch authority, says Obama has gone way beyond the normal lines with his unilateral immigration reform.

Under Article II, Section 3 of the Constitution, the president has the duty to “take Care that the Laws be faithfully executed.” This provision was included to make sure that the president could not simply choose, as the British King had, to cancel legislation simply because he disagreed with it. President Obama cannot refuse to carry out a congressional statute simply because he thinks it advances the wrong policy. To do so violates the very core of his constitutional duties.

There are two exceptions, neither of which applies here. The first is that “the Laws” includes the Constitution. The president can and should refuse to execute congressional statutes that violate the Constitution, because the Constitution is the highest form of law. We in the Bush administration argued that the president could refuse to execute laws that infringed on the executive’s constitutional powers, particularly when it came to national security — otherwise, a Congress that had a different view of foreign policy could order the military to refuse to carry out the president’s orders as Commander-in-Chief, for example. When presidents such as Jefferson, Jackson, Lincoln, and FDR said that they would not enforce a law, they did so when the law violated their executive powers under the Constitution or the individual rights of citizens.

So far, so good.  But I love his examples of where Obama's road might lead:

But prosecutorial discretion is not being used in good faith here: A president cannot claim discretion honestly to say that he will not enforce an entire law — especially where, as here, the executive branch is enforcing the rest of immigration law.

Imagine the precedent this claim would create. President Romney could lower tax rates simply by saying he will not use enforcement resources to prosecute anyone who refuses to pay capital-gains tax. He could repeal Obamacare simply by refusing to fine or prosecute anyone who violates it.

So what we have here is a president who is refusing to carry out federal law simply because he disagrees with Congress’s policy choices. That is an exercise of executive power that even the most stalwart defenders of an energetic executive — not to mention the Framers — cannot support.

Random tax cuts... tempting!  OK, not really - I still think playing by the established rulle book makes mroe sense in the long run.

NIXONIAN!  If memory serves, Nixon attempted to implement a de facto line item veto by impounding funds appropriated by Congress and simply refusing to spend them.  That was overturned by something [an act of Congress upheld by a Federal Court and never taken to the Supremes] (NO, Ihave no idea why I am not Googling this, but I think the smell of breakfast is part of the explanation...)

Anyway, could  Congress earmark funds for enforcement of these specific imigration laws?  That is quite an intrusion on the Justice Dept, but Congress certainly does similar things with regard to, for example, closing military bases.

Just thinking out loud here...

And I should add - Obama's goal is to be seen as making the effort on behalf of Hispanics; an assertive Congress has many levers of power to block this, but at what net electoral cost or benefit?.

A Government of Campaigns And Not of Laws

Obama intends to implement by executive order the Obama 2012 DREAM Act which has never quite made it through Congress:

WASHINGTON (AP) — The Obama administration will stop deporting and begin granting work permits to younger illegal immigrants who came to the U.S. as children and have since led law-abiding lives. The election-year initiative addresses a top priority of an influential Latino electorate that has been vocal in its opposition to administration deportation policies.

The policy change, announced Friday by Homeland Security Secretary Janet Napolitano, will affect as many as 800,000 immigrants who have lived in fear of deportation. It also bypasses Congress and partially achieves the goals of the so-called DREAM Act, a long-sought but never enacted plan to establish a path toward citizenship for young people who came to the United States illegally but who have attended college or served in the military.

I am surprised this is legal, although, as Ericka Johnsen of Hot Air notes, the point is votes, not legality:

Can President Obama even do this without Congressional approval? I’m not sure, but then again, it hardly matters. If he can, great; if he can’t, great: It’s just another jab he can aim at an “obstructionist,” “do-nothing” Congress.

There was a time when Congressfolks would oppose even a President of their own party to protect their institutional powers. Well, we have all passed a lot of water since then...

SINCE THEY ARE RELYING ON PROSECUTORIAL DISCRETION... Hey, kids, Obama could legalize pot the same way - just announce that Federal violations of marijuana laws won't be enforced (presumably for small amounts).

THAT WAS THEN: Via the PJ Tatler, we have Obama speaking on March 28, 2011 (my emphasis):

Remarks by the President at Univision Town Hall

Bell Multicultural High School

...

Q My question for the President is why saying that deportations have stopped or the detention of many students like me? Why is it that we are still receiving deportation letters like this one?

 THE PRESIDENT: Well, Jorge, I said before we have re-designed our enforcement practices under the law to make sure that we’re focusing primarily on criminals. And so our deportation of criminals are up about 70 percent. Our deportation of non-criminals are down. And that's because we want to focus our resources on those folks who are destructive to the community. And for a young person like that young woman that we just spoke to, who’s going to school, doing all the right things, we want them to succeed -- which is why I have been such a strong proponent of the DREAM Act; why I reiterated during my -- (applause) -- why I reiterated during my State of the Union speech that we need to pass the DREAM Act. We came close in December. It almost happened.

And for those students here who aren’t familiar with what the DREAM Act says, basically what it says is if you’re a young person who came to this country with your parents, even if you were undocumented when you came here but you were a child -- you didn't make the decision -- you’ve grown up as an American child, and we want your talents here in the United States. And if you have done right in your community, if you’ve been studying hard, if you’ve been working in school, you should be able to go ahead and get a process towards legalization and a process whereby you can be a full-fledged citizen in this country.

 We almost were able to get it passed. We fell a few votes short. I believe that we can still get it done. But it’s going to be very important for all the viewers of Univision, all the students who are interested in this issue, we’ve got to keep the pressure up on Congress. And I have to say without being partisan that the majority of my party, the Democrats, I got their votes to get this passed, but we need a little bit of help from the other side. And so all of you need to contact your members of Congress, contact your members of the Senate, and let them know that this is something that is the right thing to do.

America is a nation of laws, which means I, as the President, am obligated to enforce the law. I don't have a choice about that. That's part of my job. But I can advocate for changes in the law so that we have a country that is both respectful of the law but also continues to be a great nation of immigrants. And the DREAM Act is a perfect example of a law that can help fix this.

 Of course, I believe that we also have to have an even more comprehensive reform of our immigration system. It’s broken right now. We have to have secure borders. We have to make sure that businesses are not exploiting undocumented workers, but we have to have a pathway to citizenship for those who are just looking for a better life and contributing to our country. And I’ll continue to fight for that. (Applause.)

 MR. RAMOS: Mr. President, my question will be as follows: With an executive order, could you be able to stop deportations of the students? And if that’s so, that links to another of the questions that we have received through univision.com. We have received hundreds, thousand, all related to immigration and the students. Kay Tomar (ph) through univision.com told us -- I’m reading -- “What if at least you grant temporary protective status, TPS, to undocumented students? If the answer is yes, when? And if no, why not?”

 THE PRESIDENT: Well, first of all, temporary protective status historically has been used for special circumstances where you have immigrants to this country who are fleeing persecution in their countries, or there is some emergency situation in their native land that required them to come to the United States. So it would not be appropriate to use that just for a particular group that came here primarily, for example, because they were looking for economic opportunity.

 With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books that Congress has passed -- and I know that everybody here at Bell is studying hard so you know that we’ve got three branches of government. Congress passes the law. The executive branch’s job is to enforce and implement those laws. And then the judiciary has to interpret the laws.

 There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as President.

That does not mean, though, that we can't make decisions, for example, to emphasize enforcement on those who’ve engaged in criminal activity. It also doesn’t mean that we can't strongly advocate and propose legislation that would change the law in order to make it more fair, more just, and ultimately would help young people who are here trying to do the right thing and whose talents we want to embrace in order to succeed as a country. (Applause.)

I have not rolled the tape but here is a White House webchat on the DREAM Act, with this intro:

Thanks to the participation of young people from all over the country, Deputy Assistant to the President and Director of the Office of Intergovernmental Affairs, Cecilia Munoz took great questions on whether the legislation would encourage people to come to the United States illegally (it would not) and whether the DREAM Act can be implemented by the President via Executive Order (it cannot, which is why he is strongly urging Congress to do the right thing by passing it).

EXECUTIVE DECISION: From the NY Times:

His executive order, which Latinos and other immigrants have been pleading for since Congress turned aside an effort to pass similar legislation...

And the LA Times:

Still, supporters noted that the executive order would only hold as long as Obama was in office.

 

 

 

 

Banking With The Stars

Obama, man of the beautiful people, addresses a gathering of the glitterati at a $40,000/plate Mahhattan fundraiser:

"You're the tie-breaker," he said. "You're the ultimate arbiter of which direction this country goes."

Geez, who out the Hollywood 1 percenters in charge?

AND BY THE WAY... Normally we look to Joe Biden to be the Gaffe-o-matic for the Obama campaign. Since Obama has taken over that role, does it mean that Joe is being eased out in favor of Hillarity?

If Obama Has Lost His Cheerleaders...

The press corps pans Obama's big economic speech.  Here is Dana Milbank:

Skip the falsehoods, Mr. President, and give us a plan

I had high hopes for President Obama’s speech on the economy. But instead of going to Ohio on Thursday with a compelling plan for the future, the president gave Americans a falsehood wrapped in a fallacy.

The falsehood is that he has been serious about cutting government spending. The fallacy is that this election will be some sort of referendum that will break the logjam in Washington.

That is not so good. Meanwhile, over at MSNBC...

“I thought this, honestly, was one of the least successful speeches I’ve seen Barack Obama give in several years,” said Newsweek editor Jonathan Alter. “It was long winded. He had a good argument to make, and at the beginning of the speech he seemed to be making it in a fairly compelling way but then he lost the thread.”

Alter said he thought the speech was “way too long” and Obama had “lost the audience by the end.”

Daily Beast columnist and economist Zachary Karabell agreed with Alter, saying that the President opened the speech well, but quickly lost the plot.

When all seems dark, there is always one candle burning in the night for Obama:

President Obama sometimes forgets that an important speech does not have to be endless. On Thursday, appearing before supporters at a Cleveland community college, he spent 53 minutes on the stark contrast between his goals and the failed Bush-era policies that Mitt Romney is trying to resurrect. It’s hard to imagine that the speech, overgrown as it was with policy details, won the hearts of many independent voters yearning for a clear understanding of how much is at stake in November.

Wait, was that really the NY Times?  Geez, are they re-thinking their re-thinking of their Hillary endorsement in 2008? Maybe! But they find a silver lining, or something:

The Republican recalcitrance on taxes has led to a Washington stalemate that the president referred to eight times in his speech, saying it can be broken only by the voters. But Mr. Obama’s re-election cannot, by itself, end the impasse. It is once his opponents’ free-market ideas are fully seen to be bankrupt that Congress will either change or begin acting in the country’s interest. Breaking the grip of these ideas truly is, as Mr. Obama said Thursday, “a make-or-break moment for America’s middle class.”

And it is there that Mr. Obama still has not made his case. Mr. Romney’s entire campaign rests on a foundation of short, utterly false sound bites. The stimulus failed. (Three million employed people beg to differ.) The auto bailout was a mistake. (Another million jobs.) Spending is out of control. (Spending growth is actually lower than under all modern Republican presidents [Hmm, and hmm again].) He says these kinds of things so often that millions of Americans believe them to be the truth.

It is hard to challenge these lies with a well-reasoned-but-overlong speech — just as, in an odd juxtaposition, Mr. Obama failed to make his case for his Afghanistan policy in a speech in May that was both too short and too shallow. The president has less than five months to find a way to make a vital message sink in.

That vital message amounts to insisting that the European economic model can work here.  Good luck!

Obama's Alleged Retreat From History [UPDATED]

By way of Hot Air I learn that Reason has detected Obama's retreat from history, or at least, past Presidential biographies:

In May, several folks took note that the White House’s web site had quietly added USA Today-style factoids promoting Obama’s accomplishments at the bottom of the biographies of other presidents, Democrat and Republican alike....

But as quietly as the Obama boasts appeared, they have been removed. The bullet points are now gone from all the biographies on the White House’s website.

Really? Some of them may be gone, but I can still find supplemental "Did You Know" plugs for Obama at the Kennedy, Reagan and Nixon bios. Also Coolidge, Hoover, Roosevelt, Truman, Eisenhower, Johnson, and Carter. [And now Reason can, too, in their update.]

In fact, unless we are talking about a major format change, I don't think anything has happened. So what website was Reason looking at, or what am I seeing?  I put in a few current screenshots below.

And here is how the NY Times described it last May:

The White House added the footnotes on Monday in a section titled, “Did You Know?” under the official biographies, which were written by the historian Michael Beschloss and the journalist Hugh Sidey. A White House official who spoke on the condition of anonymity to discuss internal operations told The New York Times and other news outlets on Tuesday that no biographies had been altered, and emphasized that the White House was simply adopting a promotion technique widely used on the Web.

Here is the bottom of the White House bio for Reagn:

And Kennedy:

Beats me. What are other people seeing?

 

 

The Times Serves Broccoli But No Dessert

What the heckhappened at the Times? In an article about ObamaCare they present a long genesis of the 'broccoli' argument without ever presenting rebuttal. How could they leave our friends (and their readers) on the left in such an unseasoned broccoli soup?

A snippet:

Broccoli, of all things, came up in the Supreme Court during arguments over the constitutionality of the Obama administration’s health care legislation. If Congress can require Americans to buy health insurance, Justice Antonin Scalia asked, could it force people to buy just about anything — including a green vegetable that many find distasteful?

“Everybody has to buy food sooner or later,” he said. “Therefore, you can make people buy broccoli.”

Since then broccoli has captured the public imagination and become the defining symbol for what may be the most important Supreme Court ruling in decades, one that is expected any day and could narrow the established limits of federal power and even overturn the legal underpinnings of the New Deal.

If the court strikes down the health care law — which many constitutional experts on both the right and left long doubted it would do — many lawyers say they believe one reason may be the role of broccoli in shaping the debate.

A non-rebuttal eventually is offered:

Even those who reject the broccoli argument appreciate its simplicity. Whatever the Supreme Court rules, Mr. Rivkin and his libertarian allies have turned the decision into a cliffhanger that few thought possible.

“I have some grudging admiration for them,” said Akhil Amar, a professor of law and political science at Yale and author of a book on the Constitution. “All the more so because it’s such a bad argument. They have been politically brilliant. They needed a simplistic metaphor, and in broccoli they got it.”

I have no doubt Prof. Amar had more to say, but that is all the ink he got. And much later, we see this cryptic rebuttal:

Judge Vinson also indicated that he had seen the Reason video citing vegetables. He said, “You know, my friend Dean Chemerinsky says the government can, under the commerce clause, in his view, order Americans to buy G.M. cars.”

Ian Gershengorn, a lawyer from the Justice Department, replied: “But what this case is about is the purchase of a very particular product, and it is not shoes, it is not cars, it is not broccoli.”

That argument summed up the prevailing view among legal scholars, but broccoli figured prominently in Judge Vinson’s ruling that the law was unconstitutional, as did the Reason video.

I have no doubt Mr. Gershengorn had somethig in mind, but the Times doesn't say what that was.

Let me try to fill in the blanks. Dahlia Lithwick of Slate emphasizes that the uninsured have a right to health care that is not matched by a similar right to pick up broccoli off a store's shelf; this cost-shifting gives the government a right to regulate health care.

Hmm - one might note that it was a government rule (embodying a widely shared sense of ethics) that created the hospital's obligation to provide "free" service to the indigent. One could imagine a (dumb) law that, instead of food stamps, simply gave people the right to pick up groceries, plead poverty and hunger, and leave without paying.

However, Jon Cohn of TNR addresses that point, noting that broccoli is quite specific and the limiting principals of the Commerce Clause are already sufficient:

Focus instead on this question of the limiting principle, because at least some conservatives believe it to be important and at least some commentators believe this is a problem for the government. Can the government identify one? Can it draw a line that justifies the mandate but still provides some constraints on federal action?

Actually, it more or less has, although I'm not quite sure it's put it that way: Government may regulate what the plaintiffs call "inactivity" when it is merely a prelude to an inevitable activity that government has the right to regulate. Since getting sick and consuming medical services is inevitable, and since even (most of) the law's critics acknowledge the government can regulate the way sick people pay for their medical care, the mandate is acceptable.

A government mandate to buy broccoli would not satisfy this limiting principle, because not everybody will eventually consume broccoli. Similarly, a government mandate to buy a GM car might not pass muster because not everybody will eventually buy a GM car. Broader mandates, on the other hand, might work. Congress could, for example, force everybody to obtain food vouchers, join a grocery club, or demonstrate they had plans for paying for their food—paying some sort of fine if they did not. And Congress might be able to pass a law requiring everybody to get a car, obtain a transit pass, or, again, pay a fee to offset the costs of future transportation.

These would be constitutional because everybody really does need to eat—and everybody, or almost everybody, has to get places from time to time. Of course, such laws would also be really stupid.

That is tricky - a mandate to eat broccoli would be beyond the scope of the Commerce Clause but a broader mandate, such as to join a grocery club, would not be. So now the Constitution protects us against petty annoyances but not major intrusions on our liberty? Odd.

A stronger argument, although still problematic, is that the health insurance is fundamentally different from the broccoli market because of informaton asymmetries. I am going to trail off here for a moment, but when I get to my Big Finish it will be to note that the Times probably should have made one or more of these points during this article.

Unhappy Is The Land That Has No Heroes

Lance Armstrong faces more doping charges. We have a Valerie Plame flashback here:

“These charges are a product of malice and spite and not evidence,” Robert D. Luskin, Armstrong’s Washington-based attorney, said in a telephone interview Wednesday. “Nothing else explains the fact . . . they allege an overarching doping conspiracy among four teams over 14 years and Lance is the only rider that gets charged.”

Mr. Lusking was Karl Rove's attorney during Fitzgerald's perjury investigation targeting Dick Cheney, and Rove was never charged.

Following Up On Zimmerman

Jerralyn Merritt explains who needs to show what at George Zimmerman's June 29th bond hearing. Her gist - normally a defendant is entitled to reasonable bail. This is not the case with a Murder Two charge. However, even then the state has the burden to demonstrate a strong case, and precedent suggests that plausible self-defense claims reduce a case from strong to arguable.

Hence:

So it seems to me Zimmerman is still entitled to release on bond. And Judge Lester's order [link] yesterday [where he described the stat'e case as "strong"] contains a revisionist view of what he ruled on April 20.

 

A Contempt Citation For Eric Holder?

Is the House trying to show contempt for Holder, or are they trying to hide it?

White Noise?

This Public Policy Polling result from North Carolina has people buzzing:

One caveat with Romney's lead on this poll is that it finds Obama winning the black vote by only a 76/20 margin. That seems like an unrealistically low share of African American voters for Obama.

Obama led by 87/11 in the May polling, which took place from May 10 to 13. That was immediately after the North Carolina vote opposing gay marriage and Obama's subsequent endorsement of same. May 13 was a Sunday, but most May respondents would not have sat through a Sunday sermon listening to their minister inveigh against Obama.

The sample is small - 810 people for the June survey, with 22% black, which would be 178 people.  If Obama's "true" support among blacks was 90%, the standard error for that size sample would be (approximately!) 2.2%, so a result of 76% is statistically significant.

That said, the way peeved people poll in June will probably be different from the way they vote in November. This current poll is more likely to be a harbinger of reduced black turnout than a dramatically reduced percentage for Obama.

Now Zimmerman's Wife Is Arrested

George Zimmerman's wife has been arrested for perjury and released on a $1,000 bond.

Jeralyn Merritt marshalled the background last weekend.

Here is the bond revocation order from Judge Lester. In explaining the revocation, Lester includes the assertion that "the evidence against [Zimmerman] is strong". Yikes! Someone run that by Alan Dershowitz.

And here is the charging document.

Two Nominees To The Supreme Court Fast Track

Obama will nominate Caitlin Halligan and Srikanth Srinivasan to serve on the United States Court of Appeals for the District of Columbia Circuit.

 

Source This

Eric Holder embarks on a no-hope, no credibility attempt to investigate Team Obama's 2012 'victory leaks'.

The original AP underwear bomber story is here. The fateful sourcing seems to be here (my emphasis):

WASHINGTON (AP) — The CIA thwarted an ambitious plot by al-Qaida's affiliate in Yemen to destroy a U.S.-bound airliner using a bomb with a sophisticated new design around the one-year anniversary of the killing of Osama bin Laden, The Associated Press has learned.

The plot involved an upgrade of the underwear bomb that failed to detonate aboard a jetliner over Detroit on Christmas 2009. This new bomb was also designed to be used in a passenger's underwear, but this time al-Qaida developed a more refined detonation system, U.S. officials said.

As more details emerged it became clear that this was a misleading and US-centric account of what was really a British success.

The other big leak was on the joint US/Israeli cyber-war against Iran. Times reporter David Sanger's recent piece is here, but... do keep in mind this is part of his book promotion, and he has been on this story for years. For example, just as Bush was leaving in January 2009, Sanger described his last-gasp efforts against Iran, as well as their hand-off to Obama:

WASHINGTON — President Bush deflected a secret request by Israel last year for specialized bunker-busting bombs it wanted for an attack on Iran’s main nuclear complex and told the Israelis that he had authorized new covert action intended to sabotage Iran’s suspected effort to develop nuclear weapons, according to senior American and foreign officials.

...The White House denied that request outright, American officials said, and the Israelis backed off their plans, at least temporarily. But the tense exchanges also prompted the White House to step up intelligence-sharing with Israel and brief Israeli officials on new American efforts to subtly sabotage Iran’s nuclear infrastructure, a major covert program that Mr. Bush is about to hand off to President-elect Barack Obama.

This account of the expanded American covert program and the Bush administration’s efforts to dissuade Israel from an aerial attack on Iran emerged in interviews over the past 15 months with current and former American officials, outside experts, international nuclear inspectors and European and Israeli officials. None would speak on the record because of the great secrecy surrounding the intelligence developed on Iran.

That list of sources might include some figures transitioning into the Obama Administration but it has to include some Bushmen as well. Both sides have had an interest in promoting a tough-guy image and in reassuring the Israelis (and the US) that the situation with Iran is not in an out-of-control death spiral.

None So Deaf As Those Who Will Not Hear

Paul Krugman rails at the European Central Bank for failing to cut interest rates.

Most notably, last week the European Central Bank declined to cut interest rates. This decision was widely expected, but that shouldn’t blind us to the fact that it was deeply bizarre. Unemployment in the euro area has soared, and all indications are that the Continent is entering a new recession. Meanwhile, inflation is slowing, and market expectations of future inflation have plunged. By any of the usual rules of monetary policy, the situation calls for aggressive rate cuts. But the central bank won’t move.

And that doesn’t even take into account the growing risk of a euro crackup. For years Spain and other troubled European nations have been told that they can only recover through a combination of fiscal austerity and “internal devaluation,” which basically means cutting wages. It’s now completely clear that this strategy can’t work unless there is strong growth and, yes, a moderate amount of inflation in the European “core,” mainly Germany — which supplies an extra reason to keep interest rates low and print lots of money. But the central bank won’t move.

Others think it is completely clear that the problems with the Euro are too grave to be solved exclusively with monetary policy. Yet time bought by the ECB simply becomes time squandered by Europe's 'leaders', who would welcome any excuse, such as a rate cut, to evaluate the situation and defer any unpopular decision for a few more months.

Over to the WSJ:

“The ECB looks determined to keep maximum pressure on euro-zone politicians,” [Brussels-based ING economist Carsten Brzeski] Brzeski says.

...

“More generally on the euro-zone crisis, Draghi just repeated last month’s inconvenient truth that there was no silver bullet for the crisis,” Brzeski says. “Today’s press conference was a clear signal that the ECB is tired of pulling the chestnuts out of the fire for euro-zone politicians.”

Excerpts from Draghi's comments are here.

Bracing For The Supremes

The ScotusBlog expects one opinion from the Supreme Court this week. Is this the day for ObamaCare? They don't know, or won't say.

Give War A Chance

Nick Kristof blasts our Nobel Peace Prize winner's passivity in Syria and Sudan:

Yet the president is taking prudence to the point of paralysis. I’m generally an admirer of Obama’s foreign policy, but his policies toward both Syria and Sudan increasingly seem lame, ineffective and contrary to American interests and values. Obama has shown himself comfortable projecting power — as in his tripling of American troops in Afghanistan. Yet now we have the spectacle of a Nobel Peace Prize winner in effect helping to protect two of the most odious regimes in the world.

If these polled well we would be at war tomorrow. What Mr. Kristof needs to do is outline a plan under which Obama can launch these wars, energize the anti-war left, transfer responsibility for the wars to the House Republicans, and then campaign as the candidate who will end these distracting foreign adventures and focus on rebuilding America.

Tricky.

A Big Sports Weekend

Let's gather all the trash talk in one place - there will be no Triple Crown attempt, darn it, but we have Yankees-Mets, Nadal-Unspellable in the French Open, and the final showdown between Boston's Big Three and Miami's Still Standing Two.

I'm rooting for the Yanks, Nadal, and the Celts. However, if LeBron can get past Boston the Game of Thrones with OKC will be great spectacle.  I think the Young Usurpers will dethrone King James, if it gets to that.

The Presidential Laugh Track Is Doing Fine

After four years of being caricatured as a closet socialist who distrusts private enterprise and never met a government program he didn't like, President Obama finally steps out of the closet.

In trying to prod Congress to act on his jobs programs, Obama made the same point repeatedly in a press conference yesterday - the private sector is "doing fine" and it is job losses in the public sector that are holding back the recovery.

Here we go:

And the most important thing I think we can do is make sure that we continue to have a strong, robust recovery.  So the steps that I've outlined are the ones that are needed.  We've got a couple of sectors in our economy that are still weak.  Overall, the private sector has been doing a good job creating jobs.  We've seen record profits in the corporate sector. 

The big challenge we have in our economy right now is state and local government hiring has been going in the wrong direction.  You've seen teacher layoffs, police officers, cops, firefighters being laid off.  And the other sector that's still weak has been the construction industry.  Those two areas we've directly addressed with our jobs plan.  The problem is that it requires Congress to take action, and we're going to keep pushing them to see if they can move in that direction.

Let's note that the construction industry would be a mix of public and private building. And again:

The truth of the matter is that, as I said, we’ve created 4.3 million jobs over the last 27 months, over 800,000 just this year alone.  The private sector is doing fine. Where we’re seeing weaknesses in our economy have to do with state and local government -- oftentimes, cuts initiated by governors or mayors who are not getting the kind of help that they have in the past from the federal government and who don’t have the same kind of flexibility as the federal government in dealing with fewer revenues coming in.  And so, if Republicans want to be helpful, if they really want to move forward and put people back to work, what they should be thinking about is, how do we help state and local governments and how do we help the construction industry.

And can we score a trifecta?

Keep in mind that the private sector has been hiring at a solid pace over the last 27 months.  But one of the biggest weaknesses has been state and local governments, which have laid off 450,000 Americans.  These are teachers and cops and firefighters.  Congress should pass a bill putting them back to work right now, giving help to the states so that those layoffs are not occurring.

In addition, since the housing bubble burst, we’ve got more than a million construction workers out of work.  There’s nothing fiscally responsible about waiting to fix your roof until it caves in.  We've got a lot of deferred maintenance in this country.  We could be putting a lot of people back to work rebuilding our roads, our bridges, some of our schools.  There's work to be done; there are workers to do it.  Let’s put them back to work right now.

Rebuilding bridges, roads and schools would be public sector employment.

Obama's meaning is clear. Three days after the voters of Wisconsin repudiated their public sector unions and affirmed Gov. Walker's attempts to rein them in, Obama is insistent that the real problem facing the American economy is a shrinking public sector. Good luck with that message.

The WSJ mentions some measure of health for the private sector and looks at the real problem in the public sector - rising pension and health bills.

CHANNELING MY INNER JPOD:

Let's cut to the real John Podhoretz:

Obama’s explanation for the slowdown in economic growth is that the public sector is hurting, and that’s where Washington must step in and act.

“Where we’re seeing weaknesses in our economy have to do with state and local government. Oftentimes, cuts initiated by, you know, governors or mayors who are not getting the kind of help that they have in the past from the federal government,” he said. “And so, you know, if Republicans want to be helpful, if they really want to move forward and put people back to work, what they should be thinking about is how do we help state and local governments.”

The president seriously wants to go before the American people and argue in an election year that the wildly unpopular $860 billion stimulus of 2009 needs to be supplemented this year by more direct federal support of state and local government workers?

I’m trying very hard to think of a way this argument is not politically insane for Obama in his quest to win over independent voters who will make the difference in November.

WALKBACK OR WALK-AROUND? Ann Althouse does not think Obama walked back his remarks in a subsequent 'clarification'.

HE'S NOT USING THE WORD 'SOCIALIST', BUT... Mickey Kaus also worries that Obama wasn't gaffeing, he was telling us what he really thinks about the public sector.