Tonight’s Devils Advocate is 30 minutes of fantastic public television starring yours truly, but split into two 15 minute segments. In the first part, Geoff Blue from the Attorney General’s office joins me to discuss the Lobato v. Colorado lawsuit. This case concerns state K-12 education financing and will have a large impact on our Taxpayers Bill of Rights (TABOR). In the second part, Amy Oliver Cooke, the Director of Mothers Against Debt, explains what her organization does to raise awareness among Moms about our crushing national debt. This episode airs tonight on Colorado Public Television 12 at 8:30pm, with a repeat showing this Monday at 1:30pm.

On Tuesday, within an hour of hearing about the ACLU lawsuit challenging the Dougco voucher program, our Education Policy Center sent out this media release. Additionally, Center Director Pam Benigno was quoted in this EdNewsColorado article and on this CBS4Denver (Channel 4) piece. Watch the video to see Pam!

In January, Delta Airlines announced that Saudi Arabian Airlines is joining Delta’s SkyTeam network of international airline partners. Yesterday, WorldNet Daily reported that Delta employees would be enforcing a no-Jews policy when checking in passengers on SAA flights from the United States to Saudi Arabia.

I looked around the web for verification, and found the following: In 2004, a Saudi government website, promoting visits to Saudi Arabia, did state a “no Jews” policy. Apparently in response to extensive U.S. criticism, that statement was removed. The visa required for entry to Saudi Arabia mandates that the applicant disclose his or her religion. The typical advice for American visitors is to write “non-Muslim” or “Christian.” However, a 2007 article in Commentary magazine by scholar Joshua Muravchik reports on his recent visit to Saudi Arabia; he wrote “Jewish” on his visa application, and was nevertheless granted a Saudi visa.

It does seem to be widely reported, without contradiction, that Saudi authorities will deny visas to anyone who has an Israel entrance or exit stamp on his passport. This category would include not only Jews who have visited Israel, but also the many Christians who visit the Holy Land, as well as business travelers to Israel. Several other African and Asian governments apparently have similar policies.

At airport check-in in the United States, a responsibility of the U.S. airline which is checking in travelers for an international partner airline is to verify that the travelers have the appropriate documentation required by U.S. law (e.g., a passport) and by the foreign airline (e.g., an entry visa from the Saudi government).

The WND article reprints two letters from Delta Airlines to a person who raised questions about the above. Essentially, Delta’s position is that they just enforce whatever the destination government requires, and if you don’t like  the destination government ‘s discrimination, go complain to the U.S. State Department.

I would have preferred an answer to the effect of “We have confirmed that Saudi Arabia does not discriminate against Jewish visitors, or people who have visited Israel, and we would never partner with an airline which would require us to enforce such reprehensible policies.”

Saudi Arabian Airlines is government-owned (with some ancillary services, such as catering, being privatized). Delta Airlines is exercising a choice to make its employees complicit in the enforcement of the Saudi government’s policies of hatred and discrimination against anyone who visits Israel. If Delta’s business alliance with the Saudi government is conditional on that government not reinstating a formal ban on all Jewish visitors, Delta has not taken the opportunity to say so. When I travel, I will exercise my own choice not to fly Delta.

In one of the most informative op-eds I have ever read, our Research Director and Law guru Dave Kopel discusses the Obamacare cases that could potentially be heard by the Supreme Court in the upcoming session, which begins in October 2011 and will end in June 2012. We’ve got several chances at getting a “writ of certiorari” to challenge Obamacare’s constitutionality and Dave is certain one of them will get the proverbial nod. As Dave explains, a writ of certiorari is the legal term used to describe the Supreme Court’s action in picking up a case to be heard.

Perhaps most interesting to me in the article is when Dave points out that one of the cases addresses an area of constitutionality that none of the others does. In most instances, the legal challenge is meant to take on Obamacare’s individual mandate via the Commerce Power and/or the Necessary and Proper Clause. But in Seven-Sky v. Holder, the plaintiffs are challenging the mandate on First Amendment grounds! Turns out, the mandate to buy “Western style” health insurance infringes on some people’s religious freedoms. I’ll let Dave explain,

All the Seven-Sky plaintiffs are individuals who, for one reason or another, have religious objections to using the standard services of western medicine. The PPACA contains no exemption for such people… They argue that the mandate violates the First Amendment’s guarantee of free exercise of religion, as protected by a federal statute called the Religious Freedom Restoration Act (RFRA). That 1993 law provides that the federal “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.

Isn’t that fascinating? Obamacare has some waivers and exemptions – mostly for friends of the White House and some religious groups like the Amish – but none for these folks. It will be interesting to see which of these cases the Supreme Court decides to take up. I will be doubly interested if the SCOTUS decides to take this particular First Amendment case.

If you haven’t heard yet, the ACLU is filing suit against the Douglas County voucher program. Our Education Policy Center’s response to this suit can be found here:

Lawsuit Against Dougco Voucher Program Draws Fire

Institute Decries Attempt to Stifle Parental Choice through Courts

Golden, Colo.- The Independence Institute, Colorado’s leading voice for free market policy, denounces a newly-filed lawsuit designed to stop a groundbreaking school board program from helping local families to pay for a chosen private education.

Today the American Civil Liberties Union and other school choice foes filed formal legal action to stop Douglas County families from using district vouchers to choose a private school.

“The lawsuit is disappointing, but really not surprising,” said Education Policy Center director Pam Benigno. “Opponents of parental choice and educational freedom have tried this approach many times before. For the sake of the families who will benefit, we hope it fails.”

On March 15, 2011, the Douglas County R-1 Board of Education unanimously approved a groundbreaking pilot program to issue publicly-funded “choice scholarships” to enroll at a “partner” private school. The program’s design answers the objection in the Colorado Supreme Court’s 4-3 ruling that struck down a statewide voucher program on the basis of an alleged violation of the state constitution’s provision for local school board control of instruction.

Nearly 500 current Douglas County students who applied for a choice scholarship each will be able to use $4,575 in tax funds to cover or defray private tuition costs for the 2011-12 school year. Thirty-one private schools applied to meet minimum requirements and become a “partner” school. Nineteen schools–including five independent, non-religious schools–thus far have been approved to receive choice scholarship students.

“What’s exciting for Douglas County parents is they have a genuine range of options,” Benigno said. “Parents can choose between different kinds of religious and non-religious schools. Unfortunately, some people find certain choices offensive.”

Along with a number of local community members and school leaders, Benigno and senior education policy analyst Ben DeGrow served on the Douglas County School Choice Task Force that helped to craft a number of district policy recommendations, including for the establishment of a private school parental choice program.

The Independence Institute is a non-partisan, non-profit public policy research organization based in Golden, Colo.

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13952 Denver West Parkway, Suite 400 . Golden, CO 80401 . www.independenceinstitute.org

Little Eddie also responded to the lawsuit on his blog Ed Is Watching.

The Colorado Statesman is a great publication. We have long been fans of theirs and this is why we were excited when they came to our assaults on our initiative and referendum process event last month at the University Club. They wrote a great article that summed up the event nicely. They reported on the wonderful remarks from the Wall Street Journal’s John Fund and the highly diverse panel in favor of a citizen’s right to petition their government. As I pointed out the other day, no state assaults petition rights like we do in Colorado.

Again, for this that could not make it to the event, you can hear all the audio files here.

And don’t forget to read the Colorado Statesman each week!

Harping on Colorado’s budget woes is nothing new. In fact, not saying something about our budget crisis ought to earn someone a kick in the pants. Senior Fellow Fred Holden is no stranger to sounding the budget alarm bells. But in his latest op-ed he does a bit more to advance the debate than simply bemoaning an obvious problem.

Fred points out a shocking, relatively unknown contributor to our budget crisis. Namely that public sector hiring is driving a large portion of it. Consider these facts:

While wealth-creating, tax revenue-generating private sector jobs increased only 1.7 percent from 2002 to 2010, net-wealth-consuming Colorado state government jobs increased 9.1 percent… The ratio of private-to-government jobs dropped from 5.15 to 4.80.

Fred argues that public sector employment is out of control and like any economist worth their salt, Fred’s got the hard data to back up that claim.

It’s not difficult to see how we got ourselves into this situation. When the economy starts to drag, our elected officials’ affinity for ‘jobs as an end’ type thinking kicks into overdrive. Meaning the false economic assumption that jobs themselves are an end rather than a means to an end, and that having them, regardless of the outcome, helps a slumping economy. Jobs are not the end, production is the end. It’s a ubiquitous economic fallacy that consumes most politicians and voters. It is what economists call “make-work bias.” The classic example being the government hiring two sets of workers help alleviate unemployment: one to dig ditches and the other to fill them back up. And what better example of a government jobs program than government jobs? At least the typical inefficient, production crushing jobs programs are temporary in nature. Government jobs on the contrary are like diamonds: forever. But when times are tough, it’s exactly the type of platform politicians run with – and voters typically gobble up.

Fred concludes from the massive public sector growth in the last half decade that we have one simple solution: attrition. Let retirees retire with no replacement, let workers leave their government jobs and then hire no one else, and let bad public workers (a double-whammy) and their positions both get the pink slip. It’s an easy, relatively pain free way of reducing the scope of public sector employment while encouraging private sector growth.

At CNN, Politico, National Review Online’s “The Corner” blog, and at the Susan B. Anthony List website, you can read the developing controversy over some Republican presidential candidates’ refusal to sign the SBA Lists’ “2012 Pro-Life Citizen’s Pledge.”

Signers thus far are Bachmann, Gingrich, Pawlenty, Paul, and Santorum. The items on the pledge are:

FIRST, to nominate to the U.S. federal bench judges who are committed to restraint and applying the original meaning of the Constitution, not legislating from the bench;

SECOND, to select only pro-life appointees for relevant Cabinet and Executive Branch positions, in particular the head of National Institutes of Health, the Department of Justice, and the Department of Health & Human Services;

THIRD, to advance pro-life legislation to permanently end all taxpayer funding of abortion in all domestic and international spending programs, and defund Planned Parenthood and all other contractors and recipients of federal funds with affiliates that perform or fund abortions;

FOURTH, advance and sign into law a Pain-Capable Unborn Child Protection Act to protect unborn children who are capable of feeling pain from abortion.

Of the candidates who have refused to sign, Mitt Romney objects because the wording of the demand to cut on federal abortion funding could be construed to stop federal aid to many hospitals; further, he refuses to make pro-life a litmus test for his executive branch appointments, as long as the appointees are willing to abide by (President) Romney’s own pro-life views. Herman Cain says he would “sign” the pain bill, but will not take the pledge to “advance” the bill, because “Congress must advance the legislation,” and he must have “respect for the balance of power and the role of the presidency.”

Thus, of the announced candidates, we have only Gov. Gary Johnson who might have constitutional scruples about the federal pain bill.

The Pain-Capable Unborn Child Protection Act, which has been enacted in several states, requires that physicians provide a woman who is at least 20 weeks pregnant, and who is seeking an abortion, with information to obtain informed consent about the pain that the fetus will feel during the abortion.

The PCUCPA is probably constitutional under Planned Parenthood v. Casey, since it does not ban pre-viability abortions, and the lower courts have not generally found other informed consent laws for abortion to be an “undue burden,” as Casey defines that term.

However, a federal PCUCPA is plainly unconstitutional under the “original meaning” of the Constitution, which judges appointed by SBA Pledge signers would presumably uphold. The federal version of PCUCPA is S. 314, introduced by Sen. Mike Johanns (R-Neb.). After the definitions section of the proposed statute, the bill states: “Any abortion provider in or affecting interstate or foreign commerce, who knowingly performs any abortion of a pain-capable unborn child, shall comply with the requirements of this title.”

Federal abortion control under the purported authority of congressional power “To regulate Commerce...among the several States” is plainly unconstitutional under the original meaning of the interstate commerce.

Even under the lax (but non-infinite) version of the interstate commerce power which the Court articulated in Lopez,  a federal ban on partial-birth abortion is dubious, as Glenn Reynolds and I argued in a Connecticut Law Review article. Indeed, in the 5–4 Supreme Court decision upholding the federal ban, Gonzales v. Carhart, Justices Thomas and Scalia, who voted in the majority to uphold the ban as not violating the Casey abortion right, concurred to point out “that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.”

In other words, if the attorneys who challenged the federal ban on partial-birth abortions had been willing to raise all plausibile constitutional claims, instead of losing the case 4–5 they probably could have won 6–3, by assembling a coalition of 4 strongly pro-abortion-rights Justices, plus Scalia and Thomas on the commerce issue.

When we get beyond Lopez, and truly look at original meaning, then the unconstitutionality of the federal PCUCPA is obvious. In Gibbons v. Ogden, Chief Justice Marshall explained that “health laws of every description” are outside the scope of the federal commerce power. The statement has been cited with approval by other Supreme Court justices at least 20 times. As Wickard v. Filburn observed, the Marshall opinion in Gibbons “described the Federal commerce power with a breadth never yet exceeded.” Wickard v. Filburn, 317 U.S. 111, 120 (1942). (For more on Marshall’s views about federal health control, see this article by Rob Natelson and me.)

Marshall’s opinion in Gibbon may be considered the outer boundary of any originalist interpretation of the interstate commerce power. What doctors tell patients before providing abortions is obviously not interstate commerce, all the more so since the vast majority of patients do not cross state lines to obtain abortions.

Yale’s Jack Balkin makes the argument that in the original meaning, “commerce” means “intercourse,” and thus the original meaning allows a vast amount of federal regulation of intra-state, non-economic activity. Rob Natelson and I explained the errors in this theory in an on-line article for the Michigan Law Review.

Presumably the Republican signers of the SBA pledge would not assert that the appointment of judges who accept Balkin’s “commerce = intercourse” theory of original meaning would comport with President’s pledge to appoint judges who would follow original meaning. All of the Republican presidential candidates have said that the Obamacare individual mandate to purchase expensive congressionally-designed health insurance from the congressionally-favored insurance oligopoly is unconstitutional. Balkin’s intercourse theory, however, would support the constitutionality of the mandate.

The signing of the SBA pledge by Rep. Ron Paul (R-Tex.) is particularly disappointing, since Paul has usually made a point of being scrupulous about federal powers. Indeed, Paul was the sole “pro-gun” Representative who voted against the Protection of Lawful Commerce in Arms Act, a federal statute which outlawed lawsuits, in federal and state courts, against the manufacturers, wholesalers, and lawful retailers of firearms for guns which were lawfully sold and properly functioning. Paul’s argument was that the law exceeded the federal power to regulate interstate commerce; I disagree, since the undisputed original purpose of the interstate commerce power was to empoower Congress to act against state barriers to interstate commerce. The anti-gun lawsuits were plainly an effort to use fanciful tort theories to damage the entire national market in firearms, by imposing on that market many restrictions which had been considered and rejected by Congress and the state legislatures.

Thus, in regard to the anti-gun lawsuits, Paul’s scruples were mistaken, in my view, but he deserves credit for being sincerely scrupulous. I wish that he, and the rest of the Reublican presidential field, kept their constitutional scruples intact regarding federal anti-abortion legislation.

While the federal PCUCPA does not invoke section 5 of the 14th Amendment as a basis for the legislation, it is possible to construct an argument that some federal anti-abortion laws could be based on that power. However, it’s hard to base such an argument on the original meaning of the 14th Amendment, since there is not a shred of evidence in the 1865–68 history of the creation and ratification of the 14th Amendment (nor in the immediate post-ratification period, nor for nearly a century after ratification) that anyone imagined that the 14th Amendment empowered Congress to enact abortion-control laws, or guaranteed abortion rights.

So if a Republican who signs the SBA pledge is elected President, and he or she adheres to item 1 in the SBA pledge, appointing judges who adhere to the Constitution’s original meaning, then those judges will uphold state versions of the PCUCPA while declaring unconstitutional a federal PCUCPA.

Rob Natelson’s constitutional scholarship is unprecedented. If you only looked at his latest book, The Original Constitution: What It Said and Meant, you’d be astounded at the amount of never before seen facts and figures about our founding. Beyond just his newest book, Rob’s research has taken him to original documents from the 17th century like legal contracts, influential essays, letters from the Founders, and even pre-Revolutionary War pamphlets. These pamphlets formed the basis of a blog post and iVoices.org podcast from Rob. In his blog post, Rob cites the pre-Revolution pamphlets and their messages as evidence against an all-powerful Commerce Clause. The same all-powerful Commerce Clause that threatens to be the justification for an all-powerful federal government. Even before the war, the Founders made it clear what the federal government was allowed to do and definitely not allowed to do. In this iVoices.org podcast, Rob goes into more detail about the influential pamphleteers and the impact their writings had on the pre-Revolution colonies and our founding documents.