Archive for the 'Uncategorized' Category

John F. Kennedy, RIP

Posted by on Nov 25 2013 | Uncategorized

History tends to correct the errors of contemporaneous perceptions, and on the 50th anniversary of his assassination there were far fewer mentions than in prior years about President Kennedy’s “greatness.”

I was coming of age when President Kennedy was shot, and well remember the shock, first in my high school study hall and next in Spanish class. But by the time of the tragedy I already knew too much about his administration, and in subsequent decades other Americans and I were to learn much more that we really did not want to know.

A useful corrective to Kennedy hagiography is the section on his administration in Paul Johnson’s History of the American People. (Caveat: Johnson sometimes makes factual errors as a historian, but not on this topic.) Johnson ranks Kennedy among the worst Presidents, somewhat below President Warren Harding in his revisionist view. But let Mr. Johnson speak for his eloquent self. I’ll review what I already knew at age 15 and also some of what we all have learned since.

Neither I nor anyone else except the admiring Washington press corps knew that this President was in some ways a modern-day Emperor Commodus—a handsome young man of promise who wasted enormous amounts of irreplaceable time on adulterous affairs rather than attending to his official responsibilities. Nor was he particularly discrete about whom he bedded: Years later, the nation was shocked to learn that he had been sharing a mistress with a Mafia don. All this was fun for him, of course, but one wonders what the nation gained—or rather lost—from it.

Being from a medical family, I already was aware that Kennedy was promoting enormous new federal involvement in the American health care system, and that he was far understating the actual cost. Sydney Natelson (1911-2007), my father, was a physician and a close observer of national politics. He noted that Kennedy’s Medicare proposal was partly duplicative of existing state programs, but was structured in a way that would undermine the traditional doctor/patient relationship and turn independent physicians into bureaucrats. My father also predicted it would raise the deficit. No one, except maybe the Kennedy aides who knew the real numbers, understood that Medicare also would help render health care unaffordable for the middle class, and eventually threaten the nation with bankruptcy.

Kennedy is remembered for the “Kennedy round” of income tax cuts, a Keynesian exercise designed as “stimulus,” and later pointed to as a model by Republicans as well. Its flaws were that without spending reductions, the tax cuts added to the deficit and any stimulus effect soon expired, being replaced with inflation and/or renewed sluggishness. Kennedy’s Harvard boys (unlike Obama’s Harvard boys and girls) understood that lower tax rates encourage enterprise, but they thought government spending does also. Actually, government spending ultimately discourages enterprise by inefficient use of valuable resources, creating incentives not to be productive, and feeding the corps of regulators and dependents that weaken the private sector.

In foreign affairs, Kennedy cultivated an image of toughness, but the record was otherwise. During his 1960 campaign, he argued that the Eisenhower administration had allowed the U.S. to lag behind the USSR in missiles (the “missile gap”). This turned out to be fiction. While President, Kennedy authorized a coup d’etat against the elected president of South Vietnam, thereby eliminating the only leader with a hope of handling the Communist Viet Cong. The result was a much wider war and much deeper American involvement.

Then there was Cuba: In 1961, over the objections of advisors such as Commander of Naval Operations Arleigh Burke, Kennedy deserted at the Bay of Pigs an army of Cuban freedom fighters the U.S. had trained and delivered. The year after the ensuing massacre, Kennedy’s administration repeatedly denied reliable reports that the Soviets were placing inter-continental ballistic missiles in Cuba. Kennedy changed his mind a few days before the mid-term congressional elections, a timing that helped contain Democrat losses. In a dramatic address (which I remember watching), Kennedy outlined a plan to force those missiles out. This confrontation took us to the edge of World War III, but the ultimate outcome was a fizzle. In exchange for unverified removal of the missiles, Kennedy made a series of unpublicized concessions to the Soviets. Among them: The U.S. was to remove missiles from NATO ally Turkey, and Castro was to remain in power indefinitely. Castro thereby was left in place to promote international discord for another 40 years; and the Cuban people even now remain locked in the prison he constructed.

Then there were the widespread wiretapping and other civil liberties violations, Kennedy’s relative inability to deal with Congress, and so forth.

In recent days, there has been some speculation about what might have happened if Kennedy had lived. These speculations take for granted that he would have won a second term. But this is an inadmissible assumption: Just before his death, Kennedy’s re-election was far from assured. It could have been forestalled completely by one or two more missteps of the kind he had already made.

A more interesting topic for speculation is what might have happened if the votes had been counted honestly in Kennedy’s first election—and if Vice-President Nixon had been as persistent in demanding a recount in 1960 as Vice-President Gore was to be in 2000. There have been widespread claims of theft in several closely-contested American presidential contests (1824, 1876, 2000). The election of 1960, however, was the most likely to have been stolen. The vote counting in both Illinois and Texas was deeply compromised (this is no longer a matter of dispute), and the switch of both states’ electoral votes would have prevented Kennedy from becoming President.

Richard Nixon was then less jaded than he later became, and although young, was older than Kennedy and a good deal more diligent and experienced. His presidency could hardly have been worse than Kennedy’s, and might have been a good deal better. At least we might not today be at the edge of fiscal ruin.

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Stand with Colorado sheriffs and Independence Institute on gun rights

Posted by on Apr 09 2013 | guns, PPC, Second Amendment, Uncategorized

The Denver Post covers the lawsuit against Colorado’s new gun owner-control laws by Colorado sheriffs:

Thirty-seven of the state’s 62 elected sheriffs are prepared to sue to overturn laws that now prohibit the sale of ammunition magazines holding more than 15 rounds and require background checks for all private gun sales, Weld County Sheriff John Cooke said Tuesday.

The Post piece also mentions the Independence Institute’s role:

The lawsuit would be handled by lawyer Dave Kopel, research director of the Independence Institute, a conservative think-tank, and adjunct Professor of Advanced Constitutional Law at the University of Denver’s Sturm College of Law…

Damn straight, the Independence Institute is both honored, and ready, to stand with the sheriffs to defend the civil liberties of Coloradans’ against the Bloomberg/White House orchestrated assault on the Second Amendment.

You can donate to the lawsuit here.

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Bleg on Apps development

Posted by on Jan 09 2013 | Uncategorized

I would like to create an Android app and an IOS app for my website, davekopel.org. My requirements are: I want to be able to submit the app to the Google Play and Apple Stores, rather than the app being available solely on a third party website. The app does not have to be highly sophisticated; my website has about a thousand html files, and a lot of pdfs, but (except for my three-column home page) all the html files are single column, without a lot of coding. (I recently figured out how to use CSS.) The app needs to be able to handle typical things such as a Twitter feed, RSS, search, YouTube channel, audio and video links, etc. But nothing fancy; I don’t create Flash for my website.

I’m willing to pay, and would prefer to pay a one-time fee, rather than a perpetual monthly fee. So, in light of all that, what web services do readers recommend for me to build the apps?

Update: To clarify my objectives, in response to comments. Basically, I’m looking for something like the apps created by Reason, Cato, or Daily Caller. To give people simpler access to information about what’s new on the site, and to enable them to navigate the site. I’m not trying to put all the full site content itself into somebody’s cell phone.

I realize that anybody can get the same information just by using their mobile phone browser, and visiting the website directly. All my html pages have the barebones coding to be mobile-friendly:

<meta name=”viewport” content=”width=device-width, initial-scale=1.0, maximum-scale=2.0, user-scalable=yes” />

In my own use of Android, I sometimes find it easier to just use the Reason App, rather than browsing to www.reason.com, in order to see what’s new at Reason, and to possible read an article, or watch a new Reason video. All I’m trying to do is provide similar a similar app for my site.

 

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Private space exploration and resentful demagogues

Posted by on Dec 10 2012 | Uncategorized

That private companies are taking up the space exploration challenge should be exciting news for everyone.

The U.S. government, now heavily riveted to its role as a redistribution machine, is too loaded with debt to carry out the manned moon exploration it began in the 1960s. So at long last entrepreneurs are stepping into the breach.

But what should be an occasion for celebration is seized by some to promote resentment.

Today’s Denver Post reports on reaction to a Boulder, Colo.-based consortium’s plan to send people back to the moon. Lynda Williams, a junior college instructor in California sees this great news merely as an opening to spread dislike and distrust.

“Many people (meaning, of course, her and a few of her pals) are concerned that space tourism is a Trojan horse for the eventual control of the moon, for a resources grab, using the billionaires to bankroll the startup,” said Lynda Williams, a physics professor at Santa Rosa Junior College.

At least according to the Post, Williams never makes clear just what is evil about a privately financed “resources grab” that does not hurt the earth’s environment or anyone else. Especially since entrepreneurs will not be able to cash in on lunar resources without making them available to others at competitive prices.

Williams goes on: “Should the common U.S. man and woman, the 99 percent, pay for the costs and risks of the ‘space happy’ dreams of billionaires?”

Williams works at a taxpayer supported college, so she apparently has no objection to the “99 percent” being forced to pay for her own happy dreams. But more to the point, her comment, at least as reported, is ignorant as well as malicious: One of the beauties of private space travel is that the public does NOT have to pay for it. And, like other entrepreneurial activities, private space travel promises spill-over effects that benefit us all but cost us nothing.

She goes on: “Whatever nation controls the moon controls the Earth.. . . If you had a moon base with space weapons, you could control all the launches on Earth.”

Uh? Aside from this statement’s dubious military wisdom, one of the great things about private space exploration is that it does NOT involve weapon-wielding governments. Even the best armed private citizens will have nowhere near enough armament to threaten others from a moon base.

Bottom line: Space entrepreneurs merit cheers not jeers. And some people need to stop spreading resentment and get a life.

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Next step: Repeal the individual mandate because it is unconstitutional

Posted by on Jun 29 2012 | congress, Constitutional History, Equal Protection, Health Care, Individual Mandate, Necessary and Proper, Politics, Popular Constitutionalism, Presidency, Separation of Powers, supreme court, Taxes, Taxing and Spending Clause, Uncategorized

McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning for National Review Online.

In refusing to hold the Second Bank of the United States unconstitutional, the McCulloch Court gave Congress broad latitude in Congress’s own evaluation of whether the Bank was “necessary” in a constitutional sense. Relying on and quoting McCulloch, President Andrew Jackson made his own judgment of constitutional necessity when he vetoed the recharter of the Bank in 1832. After a titanic political struggle, the Bank was gone, and a new term created by Jackson, “equal protection,” had become part of what the American People were coming to believe the Constitution was supposed to mean.

President Jackson dealt the Bank a fatal blow by withdrawing federal deposits from the Bank, and moving them to state banks. President Romney can follow Jackson’s lead on his first day in office, instructing the Acting Secretary of Health and Human Services to use the waiver powers in the ACA statute to issue waivers to everyone for the individual mandate. Because the individual mandate is (supposedly) a tax, it can then be repealed through the budget reconciliation process, which cannot be filibustered.

I predict that the individual mandate will never mandate anyone. Yet the mandate will be long remembered as one of the most consequential laws enacted by a Congress. The result of the “bank battle” was that even though a central bank was judicially permissible, central banking was politically toxic for the rest of the century. The “mandate battle” may have the same effect in deterring any future thoughts of congressionally-imposed mandates. (Putting aside the obvious exception for mandates that have a solid basis in the constitutional text, such as jury service.)

The enactment of the mandate has also significantly increased the probability that the next Supreme Court appointments will be made by a President and confirmed by a Senate which denounces the mandate as unconstitutional, and that the new Justices will be the kind who are inclined to vigorously enforce the many strong constitutional limits on congressional over-reaching which are articulated in NFIB v. Sebelius.

I would have preferred that the mandate had met its end yesterday morning, but the fact that the mandate will have to be finished off by the People in November and their elected officials in January may lead to even better long-term results for advocates of a constitutionally limited federal government.

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Georgia-Pacific West v NEDC: a good case for certiorari

Posted by on Jun 20 2012 | Administrative Law, Environment, supreme court, Uncategorized

Court-watchers are wondering if Thursday, June 21, will see the release of Supreme Court rulings on Obamacare or Arizona’s laws against illegal aliens. There’s another important decision that the Court almost certainly make on Thursday: whether to grant certiorari in Georgia-Pacific West v. Northwest Environment Defense Center.  (All the relevant documents are here, on Scotusblog.) Jonathan Adler blogged about it earlier today.

The Georgia-Pacific case involves a complex question of environmental law and regulatory deference, but its economic impact is enormous. In short: the federal Clean Water Act requires that most types of “point source” discharges of pollutants into waters can be allowed if the point source has discharge permit. A classic point source is a sewage discharge pipe from a factory or a municipality, that discharges into a river.

Federal law has separate controls for “non-point source” discharges of pollutants into waters. For example, if pesticides that are sprayed on a golf course run off into a river, that would be a non-point source of water pollution. In practice, most non-point sources involve farming, ranching, forestry and so on. The EPA has particular regulations for run off from such sites.

Now suppose that someone builds a logging road. There road itself is not a “pollution.” in any normal sense of the word. It’s just made of natural dirt and travel. Rainwater falls on the road, and runs off the road. For many roads, some of the rainwater run-off might eventually end up in a ditch or culvert, and the ditch or culvert might lead to a stream or lake. (The ditch or culvert helps reduce erosion.) Is the the ditch or culvert therefore a “point source” that requires a Clean Water Act discharge permit?

The EPA’s answer has always been “no.”  EPA regulations in 1976 said so explicitly. In 1987, the Clean Water Act was amended to require point source permits for stormwater runoff “associated with industrial activity”. CWA section 402(p). In writing regulations to implement the 1987 amendments, the CWA correctly decided the runoff of natural, unpolluted water from logging roads is not covered by section 402(p). One of the reasons that this is correct is that CWA definition of “point source” expressly excludes “agricultural stormwater discharges.”

However, the 9th Circuit’s decision in Georgia-Pacific held the EPA regulations invalid. 640 F.3d 1063. This creates a direct circuit split with the 8th Circuit’s Newton County Wildlife Association v. Rogers, 141 F.3d 803. If the 9th Circuit decision stands, it will essentially shut down logging within the enormous territory of the Circuit. If the 9th Circuit is right, then discharge permits are necessary not only for new roads, but for existing roads–and on private land as well as public land. Obtaining a permit can take years, and the permitting process offers many opportunities for anti-logging activists to monkey wrench and delay. If you wanted to destroy the American timber business, the 9th Circuit’s Georgia-Pacific decision is the perfect tool.

Last December, the Supreme Court asked the Solicitor General for a brief regarding Georgia-Pacific’s cert. petition. The brief agrees with petitioners (and their amici, including the majority of states Attorneys General) that the Ninth Circuit was wrong. However, the SG urged the Court not to take the case, because the EPA says it is writing new regulations which will supposedly fix the problem.

In my view, the Court should grant the petition. First, the Court should determine whether or not the Clean Water Act itself can even plausibly be read to give EPA power over rainwater runoff from logging roads.  This a very important issue for which the nation needs a definite answer.

Second, in order to give the Court time to act, Congress enacted an appropriations rider forbidding enforcement of the new permitting requirement under the Georgia-Pacific theory. (And since EPA can’t issue permits, private plaintiffs cannot sue to compel road owners to either obtain permits or shut down the road.) But the ban expires on September 30. (That the Solicitor General took have a year to file a cert. amicus brief prevented the case from possibly being heard on the merits this spring.) Because of the time necessary for Notice and Comment for EPA rulemaking, the new EPA regulation cannot possibly be operative before the litigation freeze expires.

Besides that, if the 9th Circuit is correct, then EPA “cannot” make the regulatory choice not to require discharge permits for logging roads. Thus, EPA’s new rule will itself the subject of further litigation. As long as the 9th Circuit’s panel decision in Georgia-Pacific remains valid, EPA will have to write a regulation complying with it, and so it seems inevitable that a huge number of logging roads will be requires to get point source discharge permits.

If cert. were granted, then the 9th Circuit (or failing that, the Supreme Court) should issue a stay for enforcement of Georgia-Pacific.

Even without a stay, if the Court granted cert., the grant itself would deter many private lawsuits brought under the Georgia-Pacific theory. If suits were brought, most lower courts would probably decide not to issue preliminary injunctions, and not to let the suits move forward, until the Supreme Court decided the case.

As the amicus briefs for the cert. petition explicate, the damage caused by Georgia-Pacific would be enormous. Although Georgia-Pacific involves issue of Chevron/Auer deference (including the question of whether EPA’s regulation is ambiguous), the more fundamental question is whether Congress, when enacting the Clean Water Act in 1972 (and then amending it in 1987), and setting up an intensive and strict system of permitting for waste pipes from factories, sewage pipes, and other point sources, meant for that very same system to apply to hundreds of thousands of miles of logging roads.  It is implausible to believe that Congress intended to wipe out the timber business, and to destroy the network of hundreds of thousands of logging roads which are used every day by hunters, other outdoor recreationists, farmers, and ranchers. Certainly any proposal in Congress to impose such far-reaching, harmful legislation would have engendered extensive debate.

Congress did not enact such a foolish law, nor did it give EPA the discretion to do so (in whole or in part) by regulation. It is time for the Supreme Court to say so, with finality.

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Emmy nomination for 1951 Colorado Inside Out

Posted by on Jun 14 2012 | History, Politics, television, Uncategorized

Every year the political roundtable show Colorado Inside Out does a time machine episode. Last year’s 1951 episode has just been nominated for a regional Emmy Award, in the news/interview program category. Our topics for the episode were the firing of Gen. Douglas MacArthur, the Korean War, duck and cover training, and the new federal government center in Denver. Characters were the famous singer and actress Ethel Merman, who had recently moved to Denver (played by Westword publisher Patty Calhoun), newspaperman Al Nakula (played by former Rocky Mountain News journalist Kevin Flynn), sociology professor Lois Waddell (played by Dani Newsum), and southern Colorado newspaper editor Cecil Koplowitz (played by me, evoking my father’s first journalism job, in Walsenberg).

We  are getting ready to tape a new episode, which will be set in 1912. Patty Calhoun will portray Denver socialite and social climber Molly Brown. I’m busy reading about the Balkan War which began in 1912. The episode will premiere on Friday, July 6.

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Weapons Laws of the Russian Federation

Posted by on Jun 12 2012 | guns, International Human Rights Law, Non-firearms Arms, Registration, Right to carry, Russia, Uncategorized

For those of who have been waiting for an English translation of Russia’s arms statutes, your wait is over. Independence Institute intern Margot van Loon is the author of the new Issue Paper, Weapons Laws of the Russian Federation. Here is a synopsis:

  • No permission or registration is needed to purchase and carry chemical defense weapons (e.g., tear gas guns) or electric defense devices such as stun guns.
  • Citizens have the right to acquire shotguns for self-defense and sport.
  • After five years of lawful ownership of a shotgun, a citizen may obtain a permit to purchase and use rifles for sporting purposes.
  • An individual may own up to five rifles and five shotguns.
  • Handguns are prohibited.
  • All firearms must be registered.
  • Before obtaining one’s first firearm, one must receive instruction in firearms laws and safety. Every five years, the firearms owner must pass a test demonstrating continuing knowledge of these subjects.
  • The first-time owner must also obtain a medical certification that he or she does not have any disqualifying conditions, such as mental illness or alcoholism.
  • In order to use a firearm for lawful self-defense, the crime victim must first attempt to give the criminal a warning, if practicable. Defensive use of firearms against women, the disabled, and minors is prohibited, unless they are attacking as part of a gang.

On the whole, the Russian Federation’s arms laws show considerably greater respect for the fundamental human right of self-defense than do the laws of some other European nations, such as the United Kingdom or Luxembourg.

The Russian Federation paper is part of continuing series of research papers from the Independence Institute providing full English translations of the arms laws of other nations. Other papers in this series are:

Colombia’s National Law of Firearms and Explosives. Full translation of the Colombian statutes, along with historical and narrative explanation. By Jonathan Edward Shaw.

Hungarian Weapons Law of May 2004. English translation and explanation, plus Hungarian text. By Crecy Azincourt.

Mexico’s Federal Laws on Firearms and Explosives.  By David Kopel.

If you would be interested in writing a paper for this series, please contact me using the information at the bottom of this page.

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President Obama versus the Constitution

Posted by on Apr 02 2012 | congress, Constitutional History, Constitutional Law, Constitutional Theory, Counter-Terrorism Policy, Executive Branch, federalism, Growth of Government, Habeas, Health Care, History, Individual Mandate, Jefferson, Judicial Power, obama, Presidency, Public Opinion, supreme court, Uncategorized, War on Terror

President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . .

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Because Hamilton was the foremost “big government” advocate of his time, it is especially notable that he was a leading advocate for judicial review of whether any part of the federal government had exceeded its delegated powers.

Well before Marbury v. Madison, the Supreme Court recognized that the People had given the Court the inescapable duty of reviewing the constitutionality of statutes which came before the Court. The Court fulfilled this duty in cases such as Hylton v. U.S. (1796) (Is congressional tax on carriages a direct tax, and therefore illegal because it is not apportioned according to state population?); and Calder v. Bull (1798) (Is Connecticut change in inheritance laws an ex post facto law?). The Court found that the particular statutes in question did not violate the Constitution. (The ex post facto clause applies only to criminal laws; the carriage tax was an indirect tax, not a direct tax.) However, the Court’s authority to judge the statutes’ constitutionality was not disputed.

It would not be unfair to charge President Obama with hypocrisy given his strong complaints when the Court did not strike down the federal ban on partial birth abortions, and given his approval of the Supreme Court decision (Boumediene v. Bush) striking down a congressional statute restricting habeas corpus rights of Guantanamo detainees. (For the record, I think that the federal abortion ban should have been declared void as because it was not within Congress’s interstate commerce power, and that Boumediene was probably decided correctly, although I have not studied the issue sufficiently to have a solid opinion.) The federal ban on abortion, and the federal restriction on habeas corpus were each passed with more than a “strong” 50.3% majority of a democratically elected Congress.

As a politician complaining that a Supreme Court which should strike down laws he doesn’t like, while simultaneously asserting that a judicial decision against a law he does like is improperly “activist,” President Obama is no more hypocritical than many other Presidents. But in asserting that the actions of a “strong” majority of Congress are unreviewable, President Obama’s word are truly unprecedented. Certainly no President in the last 150 years has claimed asserted that a “strong” majority of Congress can exempt a statute from judicial review. President Lincoln’s First Inaugural criticized the Dred Scott majority for using a case between two private litigants for its over-reaching into a major national question, but Lincoln affirmed that the Court can, and should, provide a binding resolution to disputes between the parties before the Court. And in 2012, the government of the United States is one of the parties before the Court. (And the government is before the Court in part because the government filed a petition for a writ of certiorari to ask the Court to use its discretion to decide the case.)

Alone among the Presidents, Thomas Jefferson appears as a strong opponent of judicial review per se. Notably, he did not propose that Congress be the final judge of its own powers, especially when Congress intruded on matters which the Constitution had reserved to the States. Rather, Jefferson argued that in such a dispute the matter should be resolved by a Convention of the States, and the States would be make the final decision. Given that 28 States have already appeared as parties in court arguing that the individual mandate is unconstitutional, we can make a good guess about what a Convention would decide about the constitutionality of the health control law.

President Obama, however, wants Obamacare to be reviewable by no-one: not by the Supreme Court, not by the States.  You can find professors and partisans who have argued for such lawlessness, but for a President to do so is unprecedented.

The People gave Congress the enumerated power “To regulate Commerce . . . among the several States.” According to the Obama administration, this delegation of power also includes the power to compel commerce. Opponents contend that the power to regulate commerce does not include the far greater power to compel commerce, and that the individual mandate is therefore an ultra vires act by a deputy (Congress) in violation of the grant of power from the principal (the People). Seventy-two percent of the public, including a majority of Democrats, agrees that the mandate is unconstitutional. Few acts of Congress have ever had such sustained opposition of a supermajority of the American public.

President Obama today has considerably raised the stakes in Sebelius v. Florida. At issue now is not just the issue of whether Congress can commandeer the People and compel them to purchase the products of a particular oligopoly. At issue is whether the Court will bow to a President who denies they very legitimacy of judicial review of congressional statutes–or at least those that statutes which garnered the “strong” majority of 219 out of 435 Representatives.

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Andy Koppelman wonders: Are people who disagree with him just stupid, or are are they insane?

Posted by on Apr 01 2012 | Constitutional Law, Constitutional Theory, Health Care, Individual Mandate, Psychology, Uncategorized

For over the two years, the very intelligent and clever professors at Balkinization have been doing a great job up trying to come up with legal arguments in support of the health control law. Even people who were not persuaded by the arguments can see how they have contributed to the debate. The first item I wrote on the health control law was back on March 22, 2010, responding to an article by Jack Balkin in the New England Journal of Medicine regarding the tax power. (Incidentally, this may make me the second VC writer–very distantly second after Randy himself–to state in writing that the health control law is unconstitutional under modern law, not just under original meaning. )

My Independence Institute colleague Rob Natelson (U. Montana law school) first wrote on the constitutionality of the health control law on Jan. 23, 2010, responding to a Los Angeles Times essay by Akhil Amar, who also writes for Balkinization. (Making Natelson the 1st full-time law professor to write something on Barnett’s side of the issue.)

I think that the VC and Balkinization have jointly helped to elevate the constitutional analysis by the courts and by the public, especially when VC and Bk have engaged and addressed each other’s arguments. Both VC and Bk kept right on going last week, with plenty of arguments for the Court made during the period between the end of oral argument on Wednesday and the Court’s conference on Friday.

In the health control law debate, VC and Balkinization have each had one outlier. At VC, our outlier was Orin Kerr, who remains unconvinced by the arguments developed by Randy et al. Orin’s public questions and challenges have helped spur the health control skeptics to refine their arguments, and to state them more precisely and clearly.

Balkinization has a different kind of outlier. Andy Koppelman has spent two years penning variations of his thesis: “Everyone who doesn’t agree with me is stupid.”

As noted below by Randy, Koppleman’s latest essay explores the implications of his certitude that “the silliness of the constitutional arguments against the mandate is apparent to any competent lawyer who assesses them in good faith.” Because every competent lawyer knows that Koppelman is right, how could anyone, including Supreme Court Justices, purport to disagree?

There could be only two possible explanations for such a frivolous opinion: (1) a naked assertion of raw power by politicized right-wing justices contemptuous of democratic processes, or (2) a sort of mass hallucination induced by the inane rantings produced by the echo chamber of the right-wing blogosphere.

Thus, says Koppelman, everyone, including lower federal courts, should “nullify” a Supreme Court decision holding the health control law unconstitutional.

I’ll leave it up to the readers to decide whether the Supreme Court saying that Congress can’t force people to buy overpriced products from the Big Insurance oligopoly merits the same sort of response that Kentucky offered to a congressional statute which (as actually enforced) outlawed criticism of the President, or which Wisconsin offered to a federal statute purporting to conscript Wisconsin citizens into enforcement of the federal Fugitive Slave Act of 1850.

But I will say this, from an organizational behavior perspective. An organization whose task involves persuasive communications can sometimes be strengthened if there is one person in the organization who can thoughtfully say “Here’s why I think the rest of you may be wrong, and here are what I see to be the weaknesses in your argument.” In contrast, an organization will not improve its persuasive effectiveness if the organization pays any attention to a fanatical member who insists, “No, the people on the other side aren’t just wrong. They MAD I tell you! MAD! They live in an echo chamber, and can’t even consider contrary ideas. Isn’t that obviously CRAZY!!?”

For my own exchanges with Professor Koppelman, see Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 Yale Law Journal Online 267 (2011), and Bad News for John Marshall, 121 Yale Law Journal Online 529 (2012), both of which were co-authored BU’s Gary Lawson. A shorter version of the Lawson/Kopel thesis on the Necessary and Proper clause is available at The Incidental Unconstitutionality of the Individual Mandate, Legal Workshop. Feb. 6, 2012.

[Epilogue: April Fool's. On me. Larry Solum of Legal Theory occasionally posts abstracts of "articles" by famous professors which  are actually Solum-written parodies that take the professor's approach and push it just one more, somewhat plausible, step into absurdity. In real life, Koppelman does accuse critics of the health control law of acting "in the spirit of a saboteur in wartime,” and he did characterize the Lawson/Kopel argument for obeying the original meaning of the Necessary and Proper clause, as expounded in McCulloch, as "insane." But he never called for nullifying a Supreme Court decision; and while he has always said that there are no non-"silly" arguments against the health control law, he has never posited mass insanity as an alternative explanation to his theory that the only way for the health control law to be ruled unconstitutional would be political bias by the judges. And congratulations to Larry Solum, who is never insane, always brilliant, and sometimes silly.]

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