Just found some more great news regarding the resistance to Obamacare. According to the Colorado News Agency, the Colorado House passed a resolution yesterday calling for a constitutional convention to repeal Obamacare. Looks like were beating back this health care takeover on all fronts!

Keep it up everyone!

Obamacare is headed to the Supreme Court. Great news! The cherry on top is that The Independence Institute is filing not one, but TWO amicus briefs (amici) on behalf of liberty and against the health care takeover. Constitutional scholars Dave Kopel and Rob Natelson take on the Medicaid mandate in one and the individual mandate in the other. Before I get into the Obamacare briefs, let’s take a step back and understand what this means. Dave Kopel has a rich history of influencing major Supreme Court decisions. For example, both the Heller and McDonald decisions were influenced by Dave’s Second Amendment work. For Dave’s most recently submitted amici, visit his website DaveKopel.com and go to the “In the Courts” section. There’s a half dozen briefs listed there that are just from this past year. To say that Dave is prolific is an injustice. He’s more like Gandalf casting unconstitutional demons out of Mordor Washington, DC.

Ok, back on track. The first brief on how the Medicaid mandate is unconstitutional was filed earlier this week (PDF here). I won’t get into the details because, well, I’m not what you call a “reader,” but I was able to get through Rob Natelson’s summary on his blog. The gist of the argument is quite simple: the Feds are big bullies. If the country were a playground, they’d be going around giving all the state’s wedgies and stealing their milk money. But it’s actually worse than that. Rob makes the case that it’s not only bullying, but also hostage taking. In other words, a bully with a taste for kidnapping. Double bad. Built into the Medicaid mandate in Obamacare are requirements that the states expand their Medicaid programs… OR ELSE. The “or else” part is the threat of withholding federal Medicaid funding. Hence, a large sliver of each state’s budget held hostage. As Rob puts it,

Since federal Medicaid funds are a huge portion of all states’ budgets, the effect is to subordinate state fiscal policy to the whim of federal officials. This is clearly unconstitutional.

Stay tuned for details and PDF of the other amicus. It will focus on the unconstitutionality of the individual health insurance mandate. Word is, Rob and Dave work their magic on the Commerce Power and the Necessary and Proper Clause. I also hear that they plan to sit down for an iVoices.org podcast with my main minion Justin Longo on both briefs. I’ll post the brief and the podcast here when they come out.

Until then, say NO to bullying.

H.R. 1540, the National Defense Authorization Act for Fiscal Year 2012, has already passed the House, and is currently before the Senate. One section of the bill gives the President the authority to detain indefinitely American citizens, picked up on American soil, because they are allegedly supporting the enemy:

SEC. 1034. AFFIRMATION OF ARMED CONFLICT WITH AL QAEDA, THE TALIBAN, AND ASSOCIATED FORCES.
Congress affirms that—
(1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;
(2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 23 1541 note);
(3) the current armed conflict includes nations, organization, and persons who—
(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or
(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and
(4) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 11 107–40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.

Yesterday the Senate rejected an amendment by Senator Mark Udall (D-Colo.) that would have stricken the detention provisions, and required the Executive branch to submit a report (within 90 days) on the the legal and practical issues involving detention, and required Congress to hold hearings on the detention within the next 45 days after receipt of the report.

The bill also includes provisions to prevent civilian trials of prisoners currently held at Guantanamo. The Obama administration is threatening to veto the bill, although the objections appear to involve Guantanamo-type issues, and not the expansion of the executive’s detention powers. [Note: The bill version quoted above is the version as passed by the House and sent to the Senate. It is the latest version available on Thomas. The numbering for some sections may be different in earlier versions of the bill.] Kudos to Senator Udall, one of the few genuine civil libertarians in Congress, for taking the lead on this issue.

UPDATE: A commenter points out that, according to Senator Carl Levin, it was the Obama administration which told Congress to remove the language in the original bill which exempted American citizens and lawful residents from the detention power. See the C-Span video of the debate on the floor of the Senate, at 4:43:29. This is not the Obama I caucused for in Feb. 2008.

The fiery debates over our national debt, ever expanding undeclared wars, and Obamacare have resurrected a new found interest in Constitutional matters. This is great for us because we happen to have one of the leading scholars on the Constitution in our Independence Institute offices, Senior Fellow in Constitution Studies Rob Natelson. He writes a great blog for us over at constitution.i2i.org and does weekly podcasts with a minion of mine over at iVoices.org.

I’d like to point out his blog post for this week that completely eviscerates the cover article on our Constitution by Richard Stengel in Time Magazine. In it, Rob deconstructs some points Mr. Stengel was trying to make in regards to the meaning of our Constitution. As an expert on the meaning of the Constitution, Rob was able to point out the many flaws in Mr. Stengel’s points. The Time Mag article is instructive as I believe it reflects many people’s thinking about our founding document. As such, Rob wrote an entire book exploding many of the common myths that Mr. Stengel repeats tirelessly in the article. To keep yourself from making many of these popular mistakes, keep following Rob’s work on constitution.i2i.org.

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.

Despite the changing defense of Obamacare, one of the most relied upon arguments in defense of the individual mandate to purchase health insurance is to invoke the Necessary and Proper Clause of our Constitution. But what the enablers of Obamacare did not expect was to have ace legal mind and Independence Institute Research Director Dave Kopel on their case. You may recall that Dave submitted an amicus brief in both the monumental DC v. Heller and McDonald v. Chicago Second Amendment Supreme Court cases. In fact, Dave’s brief was either directly cited or relied upon by Supreme Court Justices Scalia, Alito, Breyer, and Stevens opinions in those cases. Now put yourself in the position of an Obamacare supporter when you find out that Dave Kopel is filing an amicus brief that argues that the Necessary and Proper Clause is not a justification for Obamacare and its individual mandate.

Scary huh?

Well, you should be scared. Dave decided to assemble a legal team for his amicus that would make any pro-health control apologist shake in their penny loafers. He called upon the authors of the book The Origins of the Necessary and Proper Clause – Gary Lawson, Guy Seidman, and our Senior Fellow in Constitutional Studies Rob Natelson. It’s like the modern day version of Captain Planet, except in this case they combine their powers for good rather than a bunch of feel good green mumbo jumbo.(But Dave does have a pair of those tight red skivvies).

If you want to read the amicus, you can download the PDF here. Or for a brief overview of the arguments, you can check out the press release we sent out earlier today. Dave gives a great summary of the arguments found inside the brief:

A just-filed amicus curiae brief from the Independence Institute undercuts one of the key legal defenses of the Patient Protection and Affordable Care Act. The brief shows that the “Necessary and Proper” Clause of the Constitution does not grant Congress additional power to impose an individual mandate to make people purchase health insurance from corporations favored by Congress.

The amicus brief was filed in the case of Florida v. Department of Health and Human Services, a 26-state suit against Obamacare. The State of Colorado, represented by Attorney General John Suthers, is one of the plaintiffs in the case. The 11th Circuit Court of Appeals will hear oral argument on June 8. The federal government is appealing
from a district court decision that the individual mandate is unconstitutional, and that the entire PPACA is therefore void.

The Obama administration argues that the constitutional power of Congress “To regulate Commerce…among the several States” means that Congress can force people to engage in commerce by buying a particular type of health insurance they do not want. As the district court observed, never in the history of the United States has the power to “regulate” commerce been interpreted to include a power to compel commerce.

So as a fallback position, the Obama administration argues that the individual mandate is authorized by the constitutional power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers….”

The Independence Institute brief explains why the administration’s argument about the Necessary and Proper Clause is wrong:

The word “necessary” was simply an affirmance of the well-known legal principle that the express grant of a particular power also included lesser, unstated, incidental powers. For example, the Constitution’s enumerated power to establish post offices also includes the lesser power to punish crimes committed against postal employees.

The individual mandate does not meet the legal test for “necessary.” The power to compel the purchase of a product is as great or greater than the power to regulate voluntary commerce. Thus, the mandate is not a lesser, incidental power.

Secondly, the individual mandate is not “proper.” The intended, widely-understood meaning of “proper” was to reiterate the requirement that federal laws be impartial. For example, during the debates over ratification of the Constitution, participants recognized that a law chartering a commercial monopoly would be “improper.” A law to create a monopoly would favor the monopolist at the expense of consumers. The individual mandate is even more improper: With a monopoly, citizens can still choose not to purchase the monopolist’s product, but the individual mandate compels citizens to purchase products from an insurance oligopoly.

The Independence Institute brief was written by Independence Institute Senior Fellow Robert G. Natelson, Research Director David B. Kopel, and Boston University Law Professor Gary Lawson. Natelson and Lawson are co-authors of the 2010 book The Origins of the Necessary and Proper Clause, the most in-depth historical examination of the clause.

From the Washington Whispers blog:

President Obama declared today’s 41st annual Earth Day proof of America’s ecological and conservation spirit—then completed a three-day campaign-style trip logging 10,666 miles on Air Force One, eating up some 53,300 gallons at a cost of about $180,000. And that doesn’t include the fuel consumption of his helicopter, limo, or the 29 other vehicles that travel with that car.

Almost makes Al Gore seem like a conservationist.

Our resident legal and constitutional scholar Dave Kopel participated in this incredibly important amicus brief for the 4th circuit court of appeals. The amicus argues that the individual mandate to buy health insurance found in ObamaCare is not constitutional, neither through the commerce clause nor the necessary and proper clause. The brief was filed by the Washington Legal Foundation, in Virginia v. Sebelius. The lead attorney is Ilya Somin, of George Mason Law School. You can read more about Ilya Somin and his writing over at the Volokh Conspiracy law blog where Dave also contributes. I have a strong feeling that this case will be yet another blow dealt to the individual mandate and ObamaCare in general.

Outstanding essay on the disaster in Libya and President Obama’s failure to act, by Larry Diamond in The New Republic. Diamond mainly discusses the consequences for the Libyan people, but I think that the harm will be global. Barack Obama’s America is showing itself to be a paper tiger; and every one of America’s enemies, especially the tyrants in Iran and Venezuela, are realizing that they can step up their aggression. If Gaddafi stays, he will resume his nuclear and chemical warfare plans and his support of global terrorism, secure in the knowledge that this American President will do nothing to stop him, unless the Russians and Chinese give permission. This week is may be one that will cause terrible problems for the United States for decades to come, comparable to the week when Khomenei seized power in Iran.

I’ve previously defended President Obama’s enthusiasm for golf, but the picture of the American President going on television to announce his predictions in a college basketball tournament, while America’s interests and long-term security are in imminent peril, is disconcerting. Whatever Barack Obama’s virtues, Hillary Clinton was right: he was not ready for the 3 a.m. phone call; and it appears that he never will be.

The Colorado Springs Gazette’s reliably pro-liberty, pro-free market editorial page editor Wayne Laugesen responds to President Obama’s recent call for business to “do for America” by hiring American workers and supporting the American economy:

Obama wants businesses “to hire American workers.” Because he says so? Businesses will hire workers when efforts to “do for America” result in the need for assistance from new employees. They will “support the American economy” and “invest in this nation” by providing goods, services and commodities that improve the lives of Americans. They will do for America just as an athlete will run fast. But they won’t enter the race unless they are certain it’s not rigged against them.

When businesses quit trying to do for America, it’s usually because government is choosing winners and losers. When farmers grow too much corn, rather than crops Americans want and need, it’s because government pays them to.

Remember when banks made big loans to businesses that sought to “do for America?” That was back when a bank had to “do for America” in order to make money and survive. Then the federal government, at the insistence of former President George W. Bush, handed out billions in bailout funds — even to banks that weren’t failing. That’s when large banks stopped trying to “do for America.” That’s when their business models changed and they began hoarding cash — without the need to do much at all for America.

President Obama, do what you have spoken of. Work to skillfully extract government from the marketplace. Let businesses fight for their lives, which will force them to “do for America” and hire new employees.

Read the whole thing here.