Bad Medicine

Lady:              “Well, Doctor, what have we got—a Republic, or a Monarchy?”

Franklin:        “A Republic . . . if you can keep it.”

            —Benjamin Franklin, as quoted in notes taken by Dr. James McHenry following the Constitutional Convention of 1787

Some of you may be wondering where I’ve been since Thursday’s announcement of the Supreme Court’s decision upholding Obamacare.  The ethical obligations of my license require me to maintain a certain degree of respect and decorum in my discussion of the courts.  So before I said something rash, I wanted to take some time to calm down.  I wanted to go to the gun range and blow off some steam.  I wanted to open up the bar and have a couple dozen martinis—hey, don’t I now have free publicly-subsidized medical insurance to deal with my inevitable cirrhosis of the liver?  I wanted to let some of the dust settle and reflect (although I’ll confess I still haven’t been able to bring myself to read the opinion itself).

Mostly, I wanted to find the silver lining I knew had to be there.

I have to tell you, friends, I didn’t find it.

I wasn’t all that surprised with the result, although like most of you I was cautiously optimistic that Justice Anthony Kennedy might get this one right and we’d avoid actually falling into the abyss.  What was shocking was that although Justice Kennedy in fact did side with those correctly holding the law unconstitutional, it was Chief Justice John Roberts who crossed over and wrote the opinion upholding the law.  Yes, the same John Roberts whom then-President George W. Bush touted as a solid conservative nominee, just as George H.W. Bush had done years earlier in nominating David Souter.  Congratulations, gentlemen.  Legacy, meet the Honorable Messrs. Bush.

No silver lining there.

I looked for a positive in that Chief Justice Roberts didn’t uphold the law under the Commerce Clause, thus expanding it even further beyond its already unrecognizable post-Wickard v. Filburn interpretation.  But he instead did far worse.  By choosing to uphold the law as a tax, Roberts’ opinion has effectively removed any remaining limit on the authority of the federal government.  At least prior to Thursday’s ruling, proponents of Big Government action had to tie what they wanted the government to do to the regulation of interstate commerce.  Those ties were often tortured and incoherent, but at least they had to be there.  Now Big Government proponents don’t even have to do that.  And for those of you dancing in the streets over the liberal victory, don’t say I didn’t warn you to be careful what you wish for, because the real danger in this thing isn’t the substance of Obamacare itself—it’s bad substantive policy, but that’s another discussion—but in its broader implications for the limits of federal power.  Under Chief Justice Roberts’ opinion Thursday, a different administration and Congress could just as easily enact a law that compels you to buy a handgun (or a GM electric car, or solar panels, or rubber dog turds, you name it), and imposes a tax on you if you don’t.  There is no longer any limit on what the federal government can make you do, as long as it enforces its edict with a penal tax.

No, there’s no silver lining in the rejection of the Commerce Clause argument.

Some, like Hannity, have been touting the decision as a political plus, the thinking being that it would energize people for November to defeat Obama.  I originally tried to cling to that branch myself.  But we need to be realistic.  The fact is the people who are going to be most upset with Thursday’s decision were already going to vote against Obama.  It’s kind of like the old saying about “bulletin board material” and rivalry games in football: there’s no real risk of creating extra motivation, because if you can’t get up for a game against your arch-rival, you shouldn’t be here.  It’s a nice idea to think that there’s going to be some extra push come election time because of this.

But I don’t think so.

If there’s a silver lining here, it’s on a longer term track, and it’s going to be a very painful ride.  I’ve long complained about the Bush-Rove Republican establishment being little better than Democrat-Lite, and it's why I don't identify myself as a Republican and I no longer give money to the RNC.  They’re not interested in truly conservative small-government principles; they basically want what the Democrats want, only with them in control instead.  And so we’ve been handed mealy-mouth things like “compassionate conservatism” (whatever the hell that was), compromise in the form of giving in to virtually anything the Left wants, and Supreme Court nominations like David Souter and John Roberts.  I told friends back in 2008 after we got stuck with John McCain I thought we might need someone like a (then-presumptive nominee) Hillary Clinton to win in order to drive majority sentiment sufficiently back to the Right.  That is, kind of like debriding a burn wound where you have to go through the excruciating process of scraping out the dead and infected tissue in order to bring about healing, we need people to experience the Full Monty of the Left’s agenda in order get us back to real conservatism. 

We have a similar situation now.  The people who need to be motivated to defeat the Left aren’t those on the conservative Right who are justifiably upset by Thursday’s ruling.  It’s the uninformed and naïve moderates who have been snookered by the Left’s false promises of Utopia.  Thursday’s ruling won’t get them motivated, and it won’t happen in time for November.  It’s going to take a very painful period of letting this Statist train go forward so that they can actually see the lies we’ve been warning about come to pass before they’re going to understand.  The question is whether it’s too late to turn this ship around by the time Obamacare has been fully implemented so that everyone can see its results.

Thursday night I sat both my kids down individually and told them I was sorry that I hadn’t been able to do more to stop what happened at the Court.  It’s ultimately going to affect them more than it does me.  The six year old of course doesn’t understand it yet, but the fourteen year old does.

Liberty has taken a devastating blow.

If You Want It, Here It Is, Come And Get It

Big Johnson:  I’m Special Agent Johnson of the FBI.  This is Agent Johnson.  No relation.

Robinson:       Dwayne Robinson, LAPD.  I’m in charge here.

Big Johnson:  Not any more.

            —Robert Davi as Big Johnson and Paul Gleason as Deputy Police Chief Dwayne T. Robinson in Die Hard

I have to say I was a little taken aback by Monday’s Supreme Court ruling on the Arizona immigration law.  Despite my prior cautions against reading too much into justices’ questions and comments during oral argument, I really thought the administration was going to lose this one, and lose it badly.

Boy, was I wrong.

By now you are undoubtedly aware that on Monday the Supreme Court struck most of the Arizona statute as unconstitutional on the basis that it “undermine[s] federal law” in an area where the federal government has exclusive domain.  “Undermines”?  How do you figure?

The Court struck three aspects of the Arizona statute.  One made it a crime for immigrants to seek employment without work permits.  This did not create a new state registration requirement.  The permits to which the law referred are federal work permits already required under existing federal law, and the hiring of someone without that permit is already illegal under existing federal law. 

Another made it a crime for immigrants not to carry their immigration papers on their person.  Again, this didn’t create a new state registration requirement; no one had to file an application in Phoenix to get an Arizona green card.  This part of the Arizona law was referring to the federal immigration paper work again already required under existing federal law.

The third stricken part of the Arizona immigration law allowed the police to arrest anyone suspected of committing a deportable offense.  Once again, Arizona wasn’t creating any standards for deportation, or otherwise establishing substantive immigration policy.  All it was doing was authorizing state and local police to enforce existing federal immigration law as established by Congress.  That is no different than local police making an arrest for interstate heroin trafficking, or for purchasing or selling an unregistered Class III firearm (i.e., a machine gun).

In all three aspects of the statute, all Arizona was trying to do was provide supplemental enforcement mechanisms in support of existing federal immigration policy as set forth in existing federal law enacted by Congress.  The Arizona statute did nothing to impair federal authority over immigration, and was in no way inconsistent with it.  Yet a majority of the Court held that where the federal government is supreme, even complementary State action is forbidden. 

The administration, in challenging Arizona’s law, has been long and loud in its cry that this was its exclusive domain, and that States needed to butt out.  And as if to put a final cymbal crash on it, the Department of Homeland Security within hours of the Court’s ruling suspended all cooperative arrangements with the State of Arizona.

Yes, Goose, I know the finger.

Disappointed as I am in the ruling—and as nervous as it makes me about what I had been convincing myself was going to be a Thursday ruling striking Obamacare, and I fear the prospect that Chief Justice Roberts might turn out to be another David Souter (surely the Bushes couldn't have repeated their mistake, could they?)—there may be a silver lining here.  This ruling is more likely to motivate flagging Tea Party types to stay in the game and get to the polls than it is to drive happy Latinos to vote.  But I think there’s a step further that can be taken here.

Some of you are going to tell me I need to be careful what I wish for, and you may be right.  But it seems to me that two can play this game that the federal Beast is imposing on us.  If the federal government wants the States to butt out of its policies and programs, even with complementary support or enforcement, fine.  Here are some suggestions: 

I’d like to see Arizona Governor Jan Brewer—God bless her—continue to stick to her guns.  If her problem is the federal government isn’t enforcing its own laws in an area in which it claims exclusive jurisdiction, make it put its money where its mouth is.  She should get together with Texas Governor Rick Perry (no chance Governor Moonbat in California will go along, and I have no idea what you’d hear from New Mexico Governor Susana Martinez) and sue the United States, Barack Obama, Eric Holder, and Janet Napolitano in federal court in Texas (we go to the 5^th Circuit, not the 9^th as you would out of Arizona) seeking a writ of mandamus and an affirmative injunction ordering them to enforce the Immigration and Nationality Act of 1965 as it was written by Congress. 

Get as many states as will join to terminate (if possible) all leases for all federal agencies renting space on State property, and ban all federal law enforcement personnel from entering any State park or building.  What’s yours is yours, and what’s mine is mine.

End all State maintenance activities on Interstate highways.  Refer all complaints to Transportation Secretary Ray LaHood, and explain that those are federal projects and are the responsibility of the federal government, as the federal government itself has made clear.  I’m sorry, I’d like to help, but we’ve been told by the White House and the United States Supreme Court to butt out of federal affairs.

Order all state and local law enforcement agencies to cease any efforts to investigate or arrest people in cases of tax evasion or any other enforcement of federal law.  Telephone or other communications from the FBI, Treasury Department, BATF, or any other federal law enforcement agency are not to be responded to beyond do it yourself.

Finally, end all State participation in Medicaid and any other unfunded federal mandates such as the Clean Air Act, Americans With Disabilities Act, etc.  Refer complaints to HHS, EPA, EEOC, or whatever the appropriate federal agency is.

The States are not mere subordinate subdivisions of the federal government to be employed or dismissed at the snap of the Beast's finger.  They need to reassert their sovereignty, and the ongoing federal war against Arizona provides a perfect backdrop against which to do it.  The Beast picked this fight, not the States.  Time for the States to push back and tell the Beast “You want exclusive jurisdiction, you got it.  Take care of those things your own damn self.”

What’s the Beast gonna do about it?

Responsibility And Consequences

She was a girl from Birmingham

She just had an abortion

She was a case of insanity

Her name was Pauline, she lived in a tree

She was a no one who killed her baby

She sent her letters from the country

She was an animal

She was a bloody disgrace

Bodies, I'm not an animal.

            —Sex Pistols, Bodies

WARNING:  THIS ARTICLE CONTAINS A FRANK AND GRAPHIC DISCUSSION OF ABORTION THAT MAY BE UPSETTING TO SOME READERS.  READER DISCRETION IS ADVISED.

Meet Jennie Linn McCormack.

Last Sunday the Houston Chronicle reprinted a June 16 L.A. Times piece telling us that Ms. McCormack is the unfortunate victim in the middle of a vicious legal battle heading to the 9^th Circuit Court of Appeals next month challenging the constitutionality of an Idaho statute that makes it illegal to obtain abortion pills from out-of-state doctors.  The tragedy here, as the Times tells it, is that Ms. McCormack found herself pregnant in December 2010, but didn’t have practical access to an abortion.  Idaho has only two in-state abortion providers, and both were several hours away from her location in Southeastern Idaho (it is worth noting that Planned Parenthood does have abortion referral services at its Logan City, Utah facility about 50 miles away, but apparently Ms. McCormack didn’t have a car).  Without access to an abortion, she was going to be forced to bear the burden of a child she could not afford.

Oh, the horror of a child.

So to avoid her predicament, Ms. McCormack obtained an RU-486 abortion pill from her sister, who purchased it over the Internet in Mississippi, and aborted her pregnancy at home (As an aside, where are the federal mail/wire fraud and controlled substances charges against them both for lying to obtain and distribute a controlled substance across state lines?).  When local law enforcement found out about it she was charged with a felony under a 1972 Idaho statute that requires abortions to be performed by a doctor, and in the case of second-trimester abortions, that they be performed in a hospital.

Rusty, why do you bring up the second trimester?  Oh, did I forget to mention that her baby—the Times article was careful to use the sterilized terms “fetus” and “it,” and of course never mentions a gender—was at 19 weeks when she performed the self-administered abortion? 

Yep, 19 weeks.  Five months. 

Charges were dismissed because there was no physical evidence left of the drug itself.  She has since filed a federal lawsuit seeking to block any further charges should additional evidence come to light—like, I don’t know, her public admission that she did it?—and to declare the law unconstitutional.  Joining her in the lawsuit is her lawyer—also a physician—who is challenging a 2011 statute prohibiting abortions after 19 weeks, arguing that permitting the state to punish abortion doctors limits abortion access.

Well, let’s see “the rest of the story,” as Paul Harvey used to put it.

This is not a tragic case of some 17 year old high school girl who shouldn’t be punished for life because she “just made a mistake,” as President Obama likes to tell it.  Jennie Linn McCormack, according to the Times article, is a 33 year old unemployed single mother of three, living on $250 a month in child support.  The Times, of course, raises this to try to further cast her as the unfortunate victim.  But my take is a little different.  If the Times is correct, Ms. McCormack has kind of been there, and done that as far as pregnancy, and I think we can safely assume she’s got a solid idea what causes that particular “health problem.”  Presumably she’s also well aware of her precarious financial situation.  So what the hell is she doing placing herself and her kids at risk of having to add another unaffordable mouth to feed by having sex in the first place (never mind how she had time for that when she should be looking for a job to feed her kids, and by the way where were the kids since we know she can’t possibly have afforded a babysitter)?

Don’t come at me with the it’s not always voluntary bit.  There isn’t even a hint of rape or involuntariness in this story, and you know the Times would have been all over it if there were any evidence (even just Ms. McCormack’s uncorroborated allegation) of that, because it just makes the hapless victim storyline that much stronger.  No, even Ms. McCormack is not claiming that her pregnancy was anything other than the result of voluntary consensual sex.

So what we’re dealing with here is not an invasive violation like a rape, or even an innocent youthful mistake, but deliberate high-risk behavior by an “adult” who should know better.  Compounding the problem, according to the Times Ms. McCormack is a serial offender in this respect.  She had had at least one prior abortion just 18 months earlier (one wonders how many others the Times ignored or didn’t document), and the Bannock County prosecutor is quoted as saying that she had also had “miscarriages” (plural).  Not to make light of miscarriages—they do occur naturally among women who have no intention of aborting their pregnancy, and they are among the most heart-wrenching things anyone can experience—but combined with a history of multiple abortions, and the pattern with Ms. McCormack is readily apparent.

To make matters worse, the abortion was performed in this case at 19 weeks (RU-486 is typically indicated for less than 7), right at the edge of viability, given modern medical technology.  Are we really to believe that Ms. McCormack, who apparently has been through at least six prior pregnancies (three live children, at least one prior aborted pregnancy, and at least two miscarriages), didn’t know she was pregnant much earlier?  Puhleeze.  This baby was at the point he or she could have survived, given a chance.  But I guess carrying to term and giving up for adoption was just too inconvenient when weighed against the alternative of killing him or her.

But it gets even worse.

At 19 weeks, Ms. McCormack's baby had hair, fingernails, and facial features.  He or she—again, we don't know, not because it's not knowable, but because in sterilizing the story the media doesn't tell us—would have looked like a human baby.  Because of the way RU-486 works, Ms. McCormack would ultimately have had to see that.  Yet in a shocking display of callous disregard for human life and the responsibilities of parenthood, Ms. McCormack couldn't even be troubled to give her baby the dignity of a decent burial, or at least turn the baby's body over to authorities.  Instead, police found the baby’s frozen remains in a cardboard box on Ms. McCormack’s barbecue on her back porch.  And somehow she had the audacity to complain to the Boise Weekly that local residents now treat her like a pariah, and her remaining kids “feel a bit ashamed” because of what they’re hearing at school.

Can’t think why.

This woman is an obvious and disgusting poster child of irresponsibility.  But she is also the predictable—indeed, inevitable—product of a culture in which we increasingly shield people from the consequences of their own actions.  Corporations are deemed “too big to fail,” so we spread their losses among the citizenry in general, then we wonder why corporations continue to take unacceptable risks.  We so fear that holding children back in school will “stigmatize” them that rather than expecting them to master the material or fail, we eliminate grades (or at least failing grades) altogether, then we’re shocked to find that 18 year old Johnny can’t read.  We take money from young workers to provide their grandparents with a stipend, then we’re surprised that people aren’t saving for their own retirement.

It is little wonder, then—although more than a little ironic—that when we afford unfettered access to abortions in the interest of protecting women’s supposed “right to control” their own bodies we find examples like Ms. McCormack of women who take advantage of this system of infinite do-overs simply to exercise no control at all.  With no consequences, there is little incentive for her to govern her behavior.  She can seek all the immediate gratification she wants, because there is no price to be paid for it—at least not by her, but who else matters?—other than the cost of a pill and a used shoebox.  And all the while the press celebrates her as the unfortunate victim.  Hell, she may eventually get to talk on CNN (if she hasn't already), and maybe even get her own reality TV show.

And so the cycle continues. 

I have no illusions that the 9^th Circuit will do anything other than strike the Idaho abortion restrictions, because that Court hasn’t in decades seen a “pro-choice” issue it didn’t love, Constitution be damned.  How long we will allow serial abusers of the system to be bailed out of the consequences of their own deliberate acts of self-gratification at the cost of another human being’s life?

It Only Hurts Me When I Cry

“The lady doth protest too much, methinks.”

            —Queen Gertrude in Hamlet

My, my, my.  Things in the most transparent of all transparent and accountable administrations just got a little more opaque and a little less, well, accountable.

On Wednesday President Obama granted Attorney General Eric Holder’s request to invoke executive privilege to avoid disclosing documents being sought by the House Oversight and Government Reform Committee relating to the investigation of Operation Fast & Furious.  As we touched on last last Monday, at issue are some 1,300 documents dating from February 2011 forward that the Committee has been trying to see since last October.  Holder tries to make that and the 7,600 pages already provided sound like a monumental effort.  As a commercial litigator, I can tell you it’s not.  A standard banker’s box (the roughly 16 x 20 inch box commonly used for storing and transporting documents) holds about 2,000 pages.  So the DOJ’s production to date consists of a grand total of less than four boxes; you will find at least that many on the floor in any associate’s office at any decent-sized law firm.  Over my nearly two decades in litigation practice, it was not uncommon to see document productions a couple of orders of magnitude larger.  1,300 documents is nothing.  Yet the Attorney General has delayed, redirected, and outright refused to comply with the subpoena (although in fairness he did sit down with Committee Chair Representative Darrell Issa (R-CA) to discuss the documents off the record). 

But Obama’s jumping into the fray with Wednesday’s privilege claim raises interesting questions.

First, where has this claim been for the last 8-9 months?  If these documents are properly covered by executive privilege, why was that privilege only invoked on the eve of Holder facing a possible contempt of Congress charge?  In litigation, a privilege that isn’t timely asserted is waived.  The documents are either privileged, or they’re not.  If the privilege applied, it has applied all along.  And it's more than passing curious that although as recently as Tuesday night neither Holder nor Obama had said so much as "boo" about asserting any privilege, by Wednesday morning Holder had a detailed eight page, single spaced letter to the President setting out his legal research supporting the claim and asking the President to do it; the President had read it, presumably digested it and maybe even discussed it with the Attorney General or with White House counsel, and made the decision to act on it; and the Department of Justice had a four page, single spaced letter to Representative Issa informing him of Obama's decision to invoke the privilege and explaining Holder's version of events.  Of course, I'm just speculating, but having been around a legal opinion letter or fifty in my time, I know they typically don't come to pass overnight; one suspects Holder and Obama have been holding this in their back pocket for some time.  Why are we only seeing it now?

Second, the executive privilege exists to protect candor in the executive’s deliberative process.  In other words, we want to ensure that the President receives the most candid internal discussion and advice in the course of his decision making, and without the privilege his advisors might be more guarded and less helpful than they might otherwise be.  If that’s so, then how can these documents be covered by the executive privilege if Holder had to write to tell Obama what they were, and affirmatively ask Obama to claim the privilege?  That is, if they were truly part of executive decision-making, shouldn’t the executive already know what those documents are and be seeking on his own to claim the privilege?

Third, to what “deliberative process” do these documents pertain, and more importantly, of what vital national security interest are they such that they need to be protected (a point then-Senator Obama made on national TV in criticizing the Bush administration’s invocation of the privilege)?  Fast & Furious, an operation even Holder has publicly admitted was a “mistake” that “should never have happened,” is over.  It’s not an ongoing project.  Moreover, the documents at issue don’t deal with the operation itself, and thus should have no implications in terms of jeopardizing personnel or current law enforcement activities.

In his letter to the President justifying his request that Obama claim the privilege, Holder throws the phrase “deliberative process” around like so much candy, because he knows it is the touchstone for the legal standard governing whether the privilege applies.  But he uses it with no mooring to any substantive executive branch activity, instead apparently assuming that if he just uses the phrase enough times, it will be accepted as the truth.  The best Holder can do is claim that the documents from February 2011 forward deal with executive branch deliberations over how to respond to the media and to the Congressional inquiry.  In other words, they are documents not about the administration’s policy or the law enforcement project, but on how the administration was going to cover its ass once Fast & Furious became public. 

Given that the Justice Department originally told Congress on February 4, 2011 that there was no Fast & Furious—a representation Holder has since had to admit was “incorrect” (read: an outright lie), the administration’s response IS the issue.  The salient point Representative Issa has been trying to get at for months has been who knew about the operation and when, and why was Congress originally told it didn’t exist (not coincidentally, essentially the same questions asked of the Nixon administration with respect to Watergate; the difference here is we have at least one dead American as a direct result of the activity the administration initially denied even took place).  The documents Holder, and now Obama, are withholding go directly to those questions.

Fourth, and most importantly, why are Holder and Obama going to such lengths to prevent these documents from seeing the light of day?  What’s in those documents that is so vital they not be turned over to Congress?  We are repeatedly told not to worry about it because the DOJ’s Inspector General is investigating, but of course that’s like the wolf telling you not to worry about that incident in the chicken coop because the fox is looking into it.  Oh, OK.  Meanwhile, every time Issa’s committee presses further, Holder’s and the DOJ’s story changes; Wednesday, the DOJ was forced to retract Holder's recent testimony in which he attempted—erroneously and with no evidence—to claim that the Bush administration was briefed on a similar sting called Operation Wide Receiver.  If there’s nothing nefarious going on, why all the secrecy, and why can’t they keep their tale straight?  Why are they crying unless the questions hurt?

And why do they have to keep trying to blame Bush?

Assuming Obama and Holder are both clean on this, there’s no reason for them to resist turning these things over, and indeed doing so would presumably have demonstrated that very fact, and thus long ago ended any political mileage for Representative Issa to gain by continuing to investigate.  Yet the family of slain Border Agent Brian Terry and the American people remain with no answers as to who in this most transparent of all transparent administrations is to be accountable.

They and we deserve better. 

Too Little Too Late

First they came for the Communists, and I did not speak out—

Because I was not a Communist.

Then they came for the Trade Unionists, and I did not speak out—

Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—

Because I was not a Jew.

Then they came for me—

And there was no one left to speak out for me.

            —Rev. Martin Niemöller (at various times, and in various versions)

You've probably seen that a series of lawsuits has been filed by various Catholic organizations challenging the abortion-funding and contraception mandates emanating from Obamacare.  Timothy Cardinal Dolan, leading the U.S. Conference of Catholic Bishops, has been most vocal in opposition to these obvious intrusions into Catholics’ free exercise of their religious convictions.  And rightly so.

But my question to Cardinal Dolan and others is:  Where have you been?

To begin with, while I applaud the recent outspokenness, I have to say that the sudden righteous indignation over government mandates involving abortion and contraception rings a bit hollow.  Granted, I’m a recent arrival to the Church via the RCIA process.  But in the five years I’ve been attending Mass I can count on two fingers the times I’ve heard any discussion of the Church’s teaching about human life and the abortion/contraception issue (and we didn’t cover it in RCIA at all).  This is not a cafeteria plan elective issue—it’s fundamental to the faith.  Yet my experience has been that by and large we deal with it by not dealing with it, particularly when it's come to challenging the District.  I’m not aware of Sean Cardinal O’Malley in Boston, or Donald Cardinal Wuerl in Washington, D.C., or Archbishop George Niederauer in San Francisco, or Archbishop Joseph Naumann in Kansas City, or Bishop Francis Malooly in Wilmington so much as denying communion to, much less excommunicating “Catholic” politicians like Vice President Joe Biden (D-DE), Senator John Kerry (D-MA), Representative Nancy Pelosi (D-CA), or HHS Secretary Kathleen Sebelius (D-KS), all of whom have actively pushed pro-abortion and pro-contraception policies directly in conflict with the Church’s teaching.  The Church whines the whine now, but it has to a certain extent failed to walk the walk on the abortion/contraception issue. 

  

That said, there’s a larger point at work here.

I’ve been discussing this issue off and on with a buddy of mine for awhile.  The USCCB and others complain now that the federal government’s overstepping has landed squarely on their First Amendment toes.  But this has been something that was coming for a long time, and they’ve not only been silent as government creep has swallowed liberty in other areas, they’ve actually been actively cheering it on.  In other words, for all their current complaining about government overreach, the Obamacare problem is something Catholic leadership in the U.S. has to a large degree brought on itself by consistently supporting an ever-expanding federal government to accomplish objectives that are more properly the province of the private efforts of the Church. 

Consider (and h/t to Brutus for feeding me most of these links):  

• The U.S. Conference of Catholic Bishops has been favoring a government overhaul of healthcare since 1919.  In short, the USCCB has for a century advocated that the government nationalize this private industry, and that health care for one person be paid for with tax dollars taken from another.  
• Continuing an at least tacit opposition to free markets and private property, the Church—apparently including at least some U.S. Bishops—supported the “basic sentiment” of the “Occupy” movement, including the government-forced redistribution of wealth,and global “regulation” of economies.  
• As far back as at least 2001, the USCCB was advocating for government "stimulus," again forcibly redistributing wealth by taking it from one person in the form of taxes, and giving it to another in the form of "benefits."  
• The USCCB opposed Representative Paul Ryan’s (R-WI) budget in part because it took measures to deal with the fraud endemic in the Child Care Tax credit.    Recall, as I reported here that billions were being lost through this program as illegal aliens were claiming credits—resulting in their receiving actual checks from the U.S. Treasury—for children that did not exist, or were not in this country.  But no matter to the Church, even though through this fraud illegals are literally stealing money from taxpayers.  
• And the USCCB has advocated the creation of a National Housing Trust Fund, to create housing funded through taxpayer money siphoned from FHA and Ginnie Mae.

The Church has excelled at supporting social issues through its charitable works for millennia.  In the U.S., for over 100 years Catholic Charities USA has been working to reduce poverty and hunger—in 2010 alone CCUSA fed over 7 million people, and provided various social services to over 10 million.  There are over 400 Catholic hospitals in the U.S.  Nearly 7,000 Catholic primary and secondary schools boast a total enrollment of over 2 million children.  There are 244 Catholic colleges and universities.

Where the Church and the Bishops run astray is when they seek to accomplish their social mission through government.  The Church can collect and distribute alms, and when it’s voluntary  that’s fine.  But she goes too far when she attempts to use the force of government to extract those alms at the point of a federal bayonet.  Yet time and again the Church, and more specifically the USCCB, has advocated just that, apparently with no regard for the intrusion on free markets and private property rights such efforts pose.

I’ve written on this subject before.  God instructed us to be our brother’s keeper, but what God expects from us is always voluntary.  As the USCCB should well know, in our Catholic liturgy, during the Eucharistic Prayer at every Mass the priest recites that even Jesus’ Passion—the ultimate social justice program—was something into which He “entered willingly.”  God gave us free will, and when we look at social works in a biblical context, it is the willingness to give that is the touchstone, not accomplishing charitable aims by any means necessary, including force of government.

For too long the Church in the U.S. has misunderstood the proper role of government in our constitutional republic, and failed to appreciate the ramifications of the ratchet effect inevitably associated with government creep.  The Bishops cheered the expansion of government when it furthered the Church’s social aims, but they did so with too little foresight as to what  ramifications expanding government intrusions in one area might have on others.  They howl now that they’re getting bitten by the law of unintended consequences, and they’re shocked to find that the Beast to which they’ve fed others’ liberty for decades has now turned to devour theirs. 

Having unwittingly sowed the wind, the Church is now reaping the whirlwind (see Hosea 8:7). 

God help us. 

Breaking All The Rules

I need you so, that I could die

I love you so, and that is why

Whenever I want you, all I have to do

Is drea----eam, dream.

            —The Everly Brothers, All I Have To Do Is Dream

By now you are no doubt aware of President Obama’s (at times surly and even childish) announcement last Friday of a new Homeland Security initiative to suspend deportation of certain illegal aliens who were brought here as children and have kept themselves out of trouble.  The action fulfills his pledge last year to act where Congress fails to act, and was lauded by Hispanic activists and decried by conservative commentators as obvious political pandering.  All the usual sources have spent the weekend blasting the President’s announcement as an unconstitutional end run around Congress, and they’re correct.  

But I don't see that anybody's really detailing why that’s so.

To begin, let me say that this isn’t an I hate Obama thing.  Nor is it some racist push to free America from the dead weight of people of color (and no, I'm not saying non-whites are dead weight; I'm mocking what I'm going to be accused of).  It’s true that I have substantive objections to amnesty and the DREAM Act, but the discussion today isn’t about the content of the President’s new policy.  It’s about how that policy has come to pass.

If you’ve ever tried to play a board game with a four-year-old, you know that the actual rules set out on the inside of the box only matter as long as they suit the four-year-old.  The minute it becomes more interesting or more expedient—four-year-olds can’t say “expedient,” but they dang sure understand the concept—those rules change, often unannounced and even in undefined ways.  The game, of course, then devolves into a meaningless chaos in which the only certainty is that either the four-year-old will win, or everything comes to an end and there is much rending of garments and gnashing of teeth.

Well, it seems that’s kind of what we’re dealing with with Obama.

I’ve covered this before here, and here, and here, and here.  But it appears we’ll have to go through it again. 

The cornerstone of our democratic republic, and the reason we’ve been able to avoid any meaningful attempt at a violent coup d’état to this point in our history, is that our government and society are based on the rule of law.  We don’t make it up as we go; decisions are made through the application of known principles without the intervention of discretion.  That is, we have a set of rules that are well understood and apply to everybody, such that we operate in a predictable set of circumstances, and we can be confident that the same rules that apply today will apply tomorrow.  That’s not to say we don’t change or evolve.  But even that evolution proceeds according to a defined and predictable process.

The Constitution is our basic legal framework, the rules on the inside of the boxtop setting out how the federal government is supposed to operate.  Article I, Section 1 reads, in its entirety:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.

“All,” according to Black’s Law Dictionary, means “the whole of,” or “every member or individual component of.”  To “legislate” means “to enact laws.”  To “enact” is “to establish by law” or “to decree.”  “Power” is “the right, ability, authority, or faculty of doing something.”  The Framers could hardly have been more clear:  the entire right, ability, and authority to establish or decree laws—every bit of it—rests with Congress.  Period.  There isn’t even a second sentence to Section 1.

The Framers made no mention of the President in this respect.

But for the learning-impaired, we can go a step further.  Article II , Section 1 sets forth the basic job of the President:

The executive Power shall be vested in a President of the United States of America.

Nowhere in Section 1—or anywhere else in Article II—does the Constitution mention a power to legislate.  “Executive,” as distinguished from legislative or judicial, is the branch of government charged with “carrying laws into effect and securing their due observance.”  Indeed, to “execute”  is to “complete,” or “to carry out according to its terms.”  And not to put too fine a point on it, the only mention Article II makes of “laws” at all, other than in the context of appointing public officials (and even then it's limiting the presidential appointment power to those matters that Congress decides by law to confer), appears in Section 3:

[The President] shall take Care that the Laws be faithfully executed[.]

The Constitution simply does not confer any power upon the President to create laws.  There is no exception for the President to act in an area simply because Congress doesn’t.  Nor is there an exception when it’s “the right thing to do.”  In the context of Obama’s announcement Friday, it doesn’t matter if his new policy is similar to a proposal made by Tea Party favorite Marco Rubio.  There’s a key difference:  Marco Rubio is a Senator—a member of that Congress that is vested with the power to legislate—and he can sponsor legislation. Obama isn't, and can't.  And in any event, no matter how good or right an idea it is, or how Republican its origins, Barack Obama and Marco Rubio don’t collectively comprise a majority or even an quorum of both houses of Congress.  They still need 218 Representatives and 50 more Senators to vote “aye” before their idea can become law.

Furthermore, Congress has acted with respect to the deportation of illegal aliens.  The Immigration and Nationality Act of 1965 (8 U.S.C. § 1101 et seq.)—a law pushed by liberal favorite Ted Kennedy—lays the ground rules for immigration and deportation.  You can read it for yourself at the U.S. Citizenship and Immigration Services website here.  The statute confers NO discretion upon the President to enforce or not enforce the Act as he sees fit, and there is no exception from the deportation rules (8 U.S.C. § 1227 (Sec. 237 at the USCIS website)) for illegal aliens who were brought here as children.  There is very limited discretion vested in the Attorney General, the Secretary of State, and the Secretary of Homeland Security to do some very specific things in some very specific circumstances on a case-by-case basis, typically dealing with individual instances of domestic violence.  But otherwise, what the statute does do (8 U.S.C. § 1103 (Sec. 103 at the USCIS website)) is charge the Attorney General with the responsibility “to guard the boundaries and borders of the United States against the illegal entry of aliens,” a power Eric Holder has emphatically claimed for himself and the federal government in his lawsuit against the State of Arizona, but which his (and his predecessors’) dereliction in discharging is the root cause of the very dilemma Obama is purporting to address with his partial amnesty.   

This is the law enacted by Congress and to which the President is constitutionally bound to take care is faithfully executed.  I don’t see how unilaterally decreeing an express policy of refusing to enforce this law is “faithfully executing” anything.

To be sure, Barack Obama is not the first President to issue an executive order, nor is he the first to stretch the boundaries of presidential power.  But what we are seeing now is the pinnacle of a branch too long left unchecked, and it has now come fully untethered from its constitutional moorings.  The Framers deliberately excluded the ability to make laws—and refusing to enforce is, at a practical level, every bit an act of legislating as is drafting a bill from scratch, because it is effectively writing the law out of existence—from the discretion afforded the President.  Our Founders gave us a constitutional republic in which the power to make law rests solely with the People, through their representatives in the two houses of Congress.  They wanted to stay away from a government in which the power to make laws resided in the discretion of a single man.  They had a word for such a man:

They called him a “king.” 

And our Founders pledged their lives, fortunes, and sacred honor to be free of such a man.   

The Agony Of Defeat

“First, don’t f@*% with me.  I’m a desperate man!  And second, I want some fresh coffee.  And third, I want a recount!  And no matter how it turns out, I want my old job back!”

            —Mark Carlton as defeated Old Detroit Mayor Ron Miller in Robocop

Unemployment is at 8.2% and expected to climb.  Real unemployment is at a near-Great-Depression-level 14.5% and climbing.  The Eurozone is on the brink of collapse, and there’s no telling to what extent they’ll drag us down with them.  The Russians are arming the Assad regime in Syria, and providing materiel for Iran’s oh-so-innocent nascent nuclear program.  The New York Times readily and repeatedly obtains—and prints—classified intelligence information, but the United States Congress can’t get anything out of the Department of Justice beyond name, rank, and serial number. 

So what’s at the top of Senate Majority Leader Harry Reid’s (D-NV) legislative agenda?

Boxing.

That’s right, the United States Senate hasn’t passed a single budget proposal in three years on his watch, has taken no action on a dozen or more jobs bills that have passed the House, and Harry Reid’s concern is federal regulation of professional boxing.

I’m not even making that up.

I confess I haven’t followed boxing at all since Mike Tyson bit Evander Holyfield’s ear off back in 1997.  For those of you like me who were still wondering why the sun rose an hour late last Sunday morning, I now have the answer: apparently Manny Pacquiao lost a controversial split decision to Timothy Bradley for the WBO Welterweight title on Saturday night.  According to many observers, Pacquiao should have been awarded the decision; it’s all a great travesty, and there are multiple investigations sure to result in those responsible being sacked.  It doesn’t seem to occur to anyone that this is a problem inherent in any “sport” in which winners and losers are decided based on a judging panel’s subjective assessment of the largely aesthetic quality of an athlete’s performance (see gymnastics, figure skating, ice dancing, diving, synchronized swimming, pretty much any “X-Games” event, and the BCS football championship).

Based on complaints by others who saw the Pacquiao/Bradley fight, Reid—who didn’t see the fight himself, but who was an amateur boxer and rumor has it stayed in a Holiday Inn Express last night—is renewing calls for a federal commission to regulate the sport nationally.  Yes, the solution is always some kind of government intervention.  In this case, Reid wants to set up a National Boxing Commission—I prefer “Commission for the Regulation and Administration of Pugilism”—to establish health and safety regulations, license boxers and officials, and also regulate the business side.  Presumably the notion is that if only there had been government oversight of these things, the Pacquiao/Bradley result would have been different.  I also suppose it’s just a coincidence that Manny Pacquiao has been a political supporter of Reid’s (although I’ve got to think that the Vegas boys who run the casinos that host these fights can’t be happy with their senator inviting federal noses to peek into their operations).

Doesn’t the Senate have anything better to do with its time?

The irony here is that the fight took place in Las Vegas—in Reid’s own home state—where the Nevada Athletic Commission already has health and safety regulations for boxing, licenses participants and officials, and regulates the business.  In other words, government is already doing what Reid wants government to do.  So apparently Reid’s position is that the federal government will do it better.  Oh, now I see.  And you know Reid’s right on this, because his co-sponsor on past efforts to pass this kind of legislation is none other than John McCain (R-AZ), and anything McCain supports has to be good.

Riiiiight.

This might be different if someone crossed state lines for a bout—thus implicating interstate commerce—and got hurt because of inadequate safety measures, although it is worth noting that the major private boxing authorities—the WBC and IBF at the time—handled reforms themselves after Duk Koo Kim was killed in a bout with Ray Mancini in 1982.  But that’s not the issue with Pacquiao/Bradley.  The sole concern in this instance is that some people don’t agree with the outcome of the contest, and feel that someone other than the one who won should have won.  If that is the impetus for regulation, what Reid is really advocating is that the United States federal government literally step in and sort out the winners and losers.

Of a game.  

A rough and sometimes brutal combat-oriented game, but a game nonetheless.

This idea that government needs to intervene to correct the results of sporting events is, in a word, stupid.  To begin with, I can’t find anything in the Constitution that even comes close to suggesting that Congress has any authority to act in this fashion.  Nowhere in the Federalist Papers did Madison, Jay, or Hamilton discuss federal regulation of sports.  The Preamble doesn't say "We the People, in order to assure right and just outcomes of athletic contests . . ."  There is no constitutional right to a correct decision in a boxing match—or any other sporting contest—or even to a fair fight for that matter.

More importantly, where does it end?  If Congress is going to regulate the judging of boxing matches, will it next be setting up commissions to ensure the results of gymnastics competitions?  Is there going to be a federal panel reviewing ball/strike calls at Fenway?  Are we going to have mandatory instant replay review of every questionable pass completion in the NFL?

Oh, wait.  I forgot we already have that.

And why stop at professional sports, or even organized athletics?  Maybe there should be an agency in the District to oversee Little League—Alex, who is Danny Almonte?—or a federal bureaucrat to certify the winner when my six-year-old and her friends play Chutes and Ladders.  Hell, maybe we should even consider bringing in U.N. observers, just to make sure it’s all on the up-and-up.

I love sports, but we’ve got to get ahold of ourselves.  At the end of the day sports are just games, and human errors and unlucky breaks are a part of them.  Unlike capital punishment, it’s not really that important in the grand scheme that we move heaven and earth to get it 100% right whether the ball was in or out. 

You canNOT be serious!

In golf it’s called “the rub of the green”: sometimes good shots bounce into bad places.  The USSR gets three cracks with time expired to beat the U.S. to win Olympic basketball gold in 1972.  Mike Renfro is incorrectly ruled out of bounds, costing the Oilers a game-tying touchdown in the 1979 AFC championship game against the Steelers.  Colorado scores on fifth down to beat Missouri in 1990.  Jeffrey Maier reaches from the seats into the field of play to steal a home run for the Yankees’ Derek Jeter in the 1996 ALCS vs. the Orioles.  Yankee second baseman Chuck Knoblauch tags out Boston’s Jose Offerman from several arms’ lengths away in the 1999 ALCS.  That’s just the way it goes, and life seems to go on, even in Red Sox Nation.

Reagan taught us back in 1960 that “No government ever voluntarily reduces itself in size. So, governments' programs, once launched, never disappear.”  It is the very nature of government agencies to metastasize, both in size and in jurisdictional reach.  Once we start involving government in regulating the officiating and results of sports, it’s only a matter of time before it moves beyond simply ensuring that the player who should win in fact does win, to ensuring overall “fairness.”  In the interest of creating an “even playing field,” regulators will begin skewing the rules—or selectively applying them—so that better players don’t have an advantage over inferior players.  Maybe bad golfers will get a federally-mandated bigger hole, or slower track runners will get a head start enforced by administrative rule.  From there, they will seek to eliminate advantages created by one player having grown up in an environment more conducive to developing playing skill, and from there move to force-fitting the win/loss results to some pre-determined distribution reflective of the demographic cross-section of society regardless of skill level, performance, or effort.

This pathological impulse to resort to government regulation as the panacea for every perceived societal deficiency has got to stop.  More importantly, the pervasive interest of government at all levels in controlling the minutiae of our lives has got to stop.  Sports.  The size of the Coke you get at a restaurant.  Your popcorn at the movie theater.  A glass of milk.  Where is the end to what the Statists want to control?

Jefferson wrote that “the policy of the American government is to leave their citizens free, neither restraining nor aiding them in their pursuits.” 

He would not recognize this country today.