It’s Thursday, March 29th, 2012….and here’s The Gouge!

Leading off the Thursday edition, three takes on Day 3 of ObamaScare before the bar; first up, the WSJ:

The ObamaCare Reckoning

Overturning the whole law would be an act of judicial restraint.

 

After the third and final day of Supreme Court scrutiny of the Affordable Care Act, the bravado of the legal establishment has turned to uncertainty and in some cases outright panic. Everyone who said the decision was an easy fait accompli has been proven wrong by a Court that has treated the constitutional questions that ObamaCare poses with the seriousness they deserve.

This reckoning has also been a marvelous public education. The oral arguments have detailed the multiple ways in which the individual mandate upsets the careful equilibrium of the American political system. The Obama Administration’s arguments in favor of the mandate to buy health insurance or pay a penalty stand exposed as a demand for unlimited federal power.

Most of the Justices seem to be discomfited by this proposition, to one degree or another, and in Wednesday’s session they grappled with the Court’s options and the consequences if the mandate falls. Over the hour-long exchange the Justices conducted a tutorial about the limits of judicial power in handling a huge bill if its core is found to be unconstitutional.

The issue is known as “severability,” or what happens to the rest of a law if part of it is struck down. Usually Congress includes a clause that clearly defines its intent in that event. But the Obama Democrats neglected to include one amid the political rush to pass the law, and Supreme Court precedents are less than clear. (Purposefully in our opinion.)

The Court could uphold the individual mandate, in which case the point is moot. It could overturn the mandate without invalidating any other provision. Or it could say that everything else never would have passed without the mandate, so everything else should be taken down with it.

That last is the persuasive contention of Paul Clement, the attorney who argued for the 26 states challenging the law. He argued that the mandate is “the very heart of this act” because it is meant to subsidize the insurance regulations that drive up costs. It forces the younger and healthier to buy coverage they may not need to finance people who consume more health care.

That requirement is also tied to ObamaCare’s “exchanges” where everyone will buy coverage, which are in turn tied to the new entitlement subsidies, which are in turn tied to the Medicaid expansion, the many tax increases and all the other things on the periphery of the law that wouldn’t have passed without the individual mandate.

Justice Ruth Bader Ginsburg said Mr. Clement is asking the Court to conduct “a wrecking operation,” before stating that “the more conservative approach would be salvage rather than throwing out everything.” The Obama Administration didn’t say exactly that, but it did argue that the mandate is indispensable to its supposedly well-oiled regulatory scheme and if it is thrown out the insurance rules should be too.

But Justice Anthony Kennedy doubted Justice Ginsburg’s logic, since by taking out only the individual mandate the Court would in effect be creating a new law that Congress “did not provide for, did not consider.” To wit, costs would soar without any mechanism to offset them.

“When you say judicial restraint,” Justice Kennedy said, “you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the act. I suggest to you it might be quite the opposite.” Overturning the mandate alone, he continued, “can be argued at least to be a more extreme exercise of judicial power than to strike the whole.”

Justice Antonin Scalia chimed in to note that severing would require the Justices to comb through ObamaCare’s 2,700 pages and pick out the parts that are connected to the mandate and those that aren’t—essentially asking them to play omniscient time travelers, if not legislators. Striking it down altogether would paradoxically be a gift of judicial modesty by avoiding the legal invention of a new law. A clean slate gives Congress the most options.

As Mr. Clement argued, the best analogy is the Court’s misbegotten 1976 Buckley decision, which struck down some campaign finance provisions but not others and has led to a hash of contradictory and ambiguous rules for political speech that continues to this day.

The Court’s liberals pushed back by suggesting that the individual mandate is “just a tool to make other provisions work,” as Justice Elena Kagan put it. Yet by that standard the Court ought to strike down the entire law or most of it if it strikes down the mandate, because it shows that Congress used an illegitimate device to do things that it could have done constitutionally without it.

So far the larger liberal reckoning hasn’t been as nuanced as the High Court’s, as evidenced by the media mugging of Solicitor General Donald Verrilli. Liberals castigated his performance during oral arguments Tuesday and all but blamed him for any ObamaCare defeat.

Mr. Verrilli may not be Daniel Webster, but he was more than competent. The problem isn’t that he’s a bad lawyer, it’s that he is defending a bad law with the bad arguments that are the best the Administration could muster. Liberal Justices such as Sonia Sotomayor all but begged him to define a limiting principle on the individual mandate and therefore on federal power. He couldn’t—not because he didn’t know someone would ask but because such a principle does not exist.

Mr. Verrilli came closest to a limiting principle—and got some sympathy from Justice Kennedy—when he claimed that everyone will use health care at some point in their lives, so what’s the big deal with making young people pay more earlier?

Even if this were true, it is a deeply radical claim. The government is mandating that everyone buy health insurance specifically, but by this reasoning any economic or personal decisions that touch on health care could be used as a pretext for federal police powers. People who lead healthy lives consume fewer medical services than others, so the government could mandate exercise, a healthy diet, and more.

This is power without limit, which is not what the Constitution provides, or what its framers intended, or what the Supreme Court has ever tolerated. That is why this week’s arguments have been so careful, why they have revised the establishment’s thinking, and why they are so important for the future of American liberty.

Second, James Taranto wonders….

Will the High Court Vindicate Vinson?

Justice Kennedy sounds surprisingly like the judge who struck down ObamaCare in toto.

 

“ObamaCare defenders will call him a judicial activist,” we wrote in February 2011 about Judge Roger Vinson of the U.S. District Court in Tallahassee, Fla. That is bunk. His ruling is the very model of judicial restraint.”

We dropped in on the Supreme Court this morning and were pleased to learn that Justices Antonin Scalia and Anthony Kennedy appear to agree. Here’s Kennedy, from the transcript, addressing Deputy Solicitor General Edwin Kneedler:

When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one Act was–one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me can be argued at least to be a more extreme exercise of judicial power than to strike–than striking the whole.

And here’s Scalia:

Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages? And do you really expect the Court to do that? Or do you expect us to–to give this function to our law clerks? Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?

At issue is the question of “severability”–whether a court that strikes down one provision of a law is obliged to toss the rest of the law with it. Vinson thought that he was in this case. The Obama administration, he wrote, had “conceded that the Act’s health insurance reforms cannot survive without the individual mandate, which is extremely significant because the various insurance provisions, in turn, are the very heart of the Act itself.”

As ObamaCare made its way up the federal judiciary, Vinson was the lone jurist to accept the plaintiffs’ argument that the individual mandate is not severable. The 11th U.S. Circuit Court of Appeals overruled him on that point, although it upheld his finding that the individual mandate was unconstitutional. All other judges hearing ObamaCare cases have either held the mandate unconstitutional but severable or held the mandate constitutional, thus rendering the severability question moot.

Oddly, the administration’s position on the mandate’s severability is one no judge has adopted: that it is partly severable. If it goes, Kneedler was there to argue, two other central provisions of the law–“community rating” and “guaranteed issue,” which require insurance companies to issue money-losing policies to people who are already sick–must also fall, but the rest of the law should stand. This appears to have been a too-clever-by-half political calculation, (Which has become the hallmark of this Administration) based on the supposition that the justices would be more hesitant to strike down the mandate if it also meant striking down popular freebies.

By our lights, Kneedler was not a compelling advocate for the government’s position. We suspect that is because he and his colleagues were still reeling from yesterday’s oral arguments, in which Scalia and Kennedy, along with Chief Justice John Roberts and Justice Samuel Alito, asked a lot of tough questions of Solicitor General Donald Verrilli. (We didn’t attend yesterday, but having read the full transcript, we agree with CBS’s Jan Crawford that “Verrilli did a fine job w a mountainous task.” His case, not his legal skills, was weak.)

The justices’ evident skepticism about the government’s claims took many legal observers (though not this columnist) by surprise. Just last week the likes of Linda Greenhouse and Dahlia Lithwick were proclaiming the case for ObamaCare a no-brainer, flaunting their own brainlessness as if it proved the point.

We’re sure the solicitor general and his team are more circumspect, but we’ll bet they were overconfident nonetheless. If the mandate falls–as it suddenly seems much more likely to do–the administration risks compounding its losses by urging the court to strike down more, even if not all, of the law. So Kneedler must have approached his work today with considerable ambivalence.

Scalia also argued that the question of severability is every bit as unprecedented as the constitutional question about the individual mandate:

This is really a case of first impression. I don’t know another case where we have been confronted with this–with this decision: Can you take out the heart of the Act and leave everything else in place?

Kneedler was unable to cite a precedent to satisfy Scalia, but earlier Clement had mentioned a case that somewhat fit the bill: Buckley v. Valeo (1976), a free-speech challenge to Watergate-era campaign-finance restrictions:

In Buckley this Court looked at a statute that tried to, in a coherent way, strike down [sic; he means impose] limits on contributions and closely related expenditures.

This Court struck down the ban on expenditures, left the contribution ban in place, and for 4 decades Congress has tried to fix what’s left of the statute, largely unsuccessfully, whereas it would have I think worked much better from a democratic and separation of powers standpoint if the Court would have said: Look, expenditures are–you can’t limit expenditures under the Constitution; the contribution provision is joined at the hip. Give Congress a chance to actually fix the problem.

Justice Scalia put the matter this way, addressing H. Barton Farr, the court-appointed lawyer who argued the position that the mandate could be struck down without affecting any other provision of the law:

Mr. Farr, let’s–let’s consider how–how your approach, severing as little as possible there–thereby increases the deference that we’re showing to–to Congress. It seems to me it puts Congress in–in this position: This Act is still in full effect. There is going to be this deficit that used to be made up by the mandatory coverage provision. All that money has to come from somewhere.

You can’t repeal the rest of the Act because you’re not going to get 60 votes in the Senate to repeal the rest. It’s not a matter of enacting a new act. You’ve got to get 60 votes to repeal it. So the rest of the Act is going to be the law.

So you’re just put to the choice of I guess bankrupting insurance companies and the whole system comes tumbling down, or else enacting a Federal subsidy program to the insurance companies, which is what the insurance companies would like, I’m sure.

Do you really think that that is somehow showing deference to Congress and–and respecting the democratic process?

It seems to me it’s a gross distortion of it.

As in yesterday’s hearings, the four Democratic appointees ended up advocating for the administration’s position more effectively than its own lawyers. Ruth Bader Ginsburg offered a metaphor in the course of questioning former solicitor general Paul Clement, who argued the case for the 26 states challenging ObamaCare:

Mr. Clement, there are so many things in this Act that are unquestionably okay. I think you would concede that reauthorizing what is the Indian Healthcare Improvement Act changes to long benefits, why make Congress redo those? (Yeah….right you are Ruth; let’s recast the health care system of 311 million Americans based on the Indian Healthcare Improvement Act!) I mean it’s a question of whether we say everything you do is no good, now start from scratch, or to say, yes, there are many things in here that have nothing to do frankly with the affordable healthcare and there are some that we think it’s better to let Congress to decide whether it wants them in or out.

So why should we say it’s a choice between a wrecking operation, which is what you are requesting, or a salvage job. And the more conservative approach would be salvage rather than throwing out everything.

One problem for Ginsburg is that her views on severability are irrelevant, except in the unlikely event that she votes to strike down the mandate. If the mandate stands, that obviates the need to choose between a wrecking operation and a salvage job.

Anyway, in our view Judge Vinson had a better analogy. Last year he described ObamaCare as being “like a defectively designed watch, [which] needs to be redesigned and reconstructed by the watchmaker.” The Supreme Court is competent to throw the watch out, and nothing stops Congress from making a new one.

Lastly, Conn Carroll commenting on the Administration’s case in Wednesday’s Morning Examiner….

An Unbounded Failure

 

On Monday we previewed this week’s Supreme Court oral arguments writing:

If you want to know how the Court will decide the case come this summer, pay special attention to how the Obama Justice Department tries to explain what the limits of Congressional power are.”

This issue has been Obama’s Achilles heel throughout the process of getting to the Supreme Court. Obamacare’s defenders simply have not been able to answer the question: “If Congress can force people to buy health insurance, then what can’t they force people to do?” Or, as the attorney for Obamacare’s challengers, Paul Clement, put it in his opening of his brief: “The individual mandate rests on a claim of federal power that is both unprecedented and unbounded: the power to compel individuals to engage in commerce in order more effectively to regulate commerce. This asserted power does not exist.”

On at least three separate occasions, Obamacare’s Supreme Court Defender Solicitor General Don Verrilli was asked directly by three different justices (Kennedy, Scalia, and Alito) to explain why upholding Obamacare’s individual mandate would not create an unbounded Commerce Clause power. And he failed to provide an adequate answer every time.

When Kennedy asked him point blank, “Well, then your question is whether or not there are any limits on the Commerce Clause. Can you identify for us some limits on the Commerce Clause?” Verrilli tried to say the mandate was different because it did not force the purchase of a commodity, just how that commodity should be financed. Kennedy didn’t buy it: “But why not? If Congress — if Congress says that the interstate commerce is affected, isn’t, according to your view, that the end of the analysis.”

And later Kennedy again signaled that he rejected the government’s claim that the uniqueness of health care market provided a workable limit to Commerce Clause power. He told National Federation of Independent Businesses Attorney Mike Carvin: “The government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique.” Exactly. All markets are unique. Simply stating that health care is different in no way limits government power.

We will not know till June how Kennedy will vote, but yesterday marked the day that the individual mandates’ demise became more likely than not.

Based on the three days of oral arguments, we’d like to think ObamaScare is DOA; but then, we never thought the SCOTUS would side with McCain/Feingold and Kelo.

In a related item, the inimitable Thomas Sowell details the history on how an earlier Supreme Court, quite improperly, stretched the boundaries of the Commerce Clause beyond recognition:

Back to the Future?

 

When a 1942 Supreme Court decision that most people never heard of makes the front page of the New York Times in 2012, you know that something unusual is going on. What makes that 1942 case — Wickard v. Filburn — important today is that it stretched the federal government’s power so far that the Obama administration is using it as an argument to claim before today’s Supreme Court that it has the legal authority to impose ObamaCare mandates on individuals.

Roscoe Filburn was an Ohio farmer who grew some wheat to feed his family and some farm animals. But the U.S. Department of Agriculture fined him for growing more wheat than he was allowed to grow under the Agricultural Adjustment Act of 1938, which was passed under Congress’ power to regulate interstate commerce.

Filburn pointed out that his wheat wasn’t sold, so that it didn’t enter any commerce, interstate or otherwise. Therefore the federal government had no right to tell him how much wheat he grew on his own farm, and which never left his farm. The Tenth Amendment to the Constitution says that all powers not explicitly given to the federal government belong to the states or to the people. So you might think that Filburn was right.

But the Supreme Court said otherwise. (Which DIDN’T make them right!) Even though the wheat on Filburn’s farm never entered the market, just the fact that “it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market” meant that it affected interstate commerce. So did the fact that the home-grown wheat could potentially enter the market.

The implications of this kind of reasoning reached far beyond farmers and wheat. Once it was established that the federal government could regulate not only interstate commerce itself, but anything with any potential effect on interstate commerce, the Tenth Amendment’s limitations on the powers of the federal government virtually disappeared.

Over the years, “interstate commerce” became magic words to justify almost any expansion of the federal government’s power, in defiance of the Tenth Amendment. That is what the Obama administration is depending on to get today’s Supreme Court to uphold its power to tell people that they have to buy the particular health insurance specified by the federal government.

There was consternation in 1995 when the Supreme Court ruled that carrying a gun near a school was not interstate commerce. That conclusion might seem like only common sense to most people, but it was a close 5 to 4 decision, and it sparked outrage when the phrase “interstate commerce” failed to work its magic in justifying an expansion of the federal government’s power.

The 1995 case involved a federal law forbidding anyone from carrying a gun near a school. The states all had the right to pass such laws, and most did, but the issue was whether the federal government could pass such a law under its power to regulate interstate commerce.

The underlying argument was similar to that in the 1942 case of Wickard v. Filburn: School violence can affect education, which can affect productivity, which can affect interstate commerce.

Since virtually everything affects virtually everything else, however remotely, “interstate commerce” can justify virtually any expansion of government power, by this kind of sophistry.

The principle that the legal authority to regulate X implies the authority to regulate anything that can affect X is a huge and dangerous leap of logic, in a world where all sorts of things have some effect on all sorts of other things.

As an example, take a law that liberals, conservatives and everybody else would agree is valid — namely, that cars have to stop at red lights. Local governments certainly have the right to pass such laws and to punish those who disobey them. No doubt people who are tired or drowsy are more likely to run through a red light than people who are rested and alert. But does that mean that local governments should have the power to order people when to go to bed and when to get up, because their tiredness can have an effect on the likelihood of their driving through a red light?

The power to regulate indirect effects is not a slippery slope. It is the disastrous loss of freedom that lies at the bottom of a slippery slope.

Then there’s this from Andrea Mitchell, who, apparently unaware she’s two octaves off key, continues to sing the praises of CastroCare:

One can always depend on the Left to dispel the myth of its supposed neutrality by stubbornly clinging to undeniable untruths.

And since we’re on the subject of refusing to speak the truth….

Ex-MF Global treasurer declines to testify about alleged Corzine money transfer

 

He’s looking less and less like it every day that passes.

A top former MF Global executive declined to testify Wednesday during a House hearing on whether she approved or had knowledge that CEO Jon Corzine approved a transfer of nearly $200 million in customer funds to cover losses days before the brokerage firm collapsed.

Edith O’Brien, the firm’s former assistant treasurer, invoked her Fifth Amendment rights to not testify. Her appearance before House Financial Services’ oversight subcommittee came after congressional investigators recently acquired an email contradicting Corzine’s testimony that he did not order the transfer.

O’Brien also decline to comment on a published report that she is seeking immunity for her cooperation in an investigation.

Taking the Fifth or not, for O’Brien’s sake, we hope she’s under protective custody.

Turning to the Follow-up segment, Jonah Goldberg offers his insight regarding how and why the Left’s….

Playing the race card again

The comfortable way is to blame Trayvon Martin’s death on ‘the system,’ and ‘the system’ is a white thing

 

“White Hispanic.” That’s how the New York Times, Reuters and other media outlets have opted to describe George Zimmerman, a man who would simply be Hispanic (or Latino in this newspaper) if he hadn’t shot and killed 17-year-old Trayvon Martin. The term, rarely if ever used before this tragedy, is necessary in telling the Martin story in a more comfortable way.

What’s the comfortable way? It’s the way the blame for Martin’s death belongs squarely at the feet of “the system.” And “the system” is a white thing, don’t you know.

For instance, in a remarkably uncritical interview with The Times, Jesse Jackson explained that with the election of President Obama, “there was this feeling that we were kind of beyond racism.” He continued: “That’s not true. His victory has triggered tremendous backlash.” Indeed, “Blacks are under attack.”

Jackson apparently includes in this racist Obama “backlash” record home foreclosures for African Americans and black unemployment. It would have been nice if The Times had asked Jackson to work a little harder to connect those dots. Jackson also laments that “targeting, arresting, convicting blacks and ultimately killing us is big business” in America. (No….but maintaining the charade is certainly big business for Jackson and other race hustlers.)

On the saner end of the liberal spectrum, Reniqua Allen of the New America Foundation writes in the Washington Post that it’s harder to talk about race now that we have a black president (note: not a “white African American president,” a la the new Zimmerman standard, although both men have a white parent).

Allen is surely right that having a black president makes it hard to talk about race, particularly if you want to have the hackneyed monologue hustlers such as Jackson and the Rev. Al Sharpton want to have. Weak-tea Marxist rants about a system that parasitically feeds off black men sound absurdly antiquated when that system is run, at the top, by black men (Eric H. Holder Jr., let’s not forget, runs the Justice Department).

But the aging race industry that continues to see the world through a half-century-old prism of Jim Crow, and still wants you to see it that way too, is determined to bum-rush Zimmerman into his assigned role, heedless of facts or the lack of them.

Meanwhile, Obama, who promised a new conversation on race, seems happier in an election year to lend heft to the old one. He called for soul-searching — but absent a full set of facts, why does this homicide of all U.S. homicides require it? Obama’s comments mostly seem aimed at adding credence to liberal conventional wisdom.

Zimmerman may well deserve to go to jail. Or this may just be a confluence of horrible mistakes with no criminal intent whatsoever. That’s what a Justice Department probe and a Florida grand jury will determine. But for the forces demanding action, that isn’t good enough. Jackson threatens there will be “no peace” until Zimmerman is arrested.

Others are not so patient. The New Black Panther Party has put a $10,000 bounty on Zimmerman’s head. “He should be fearful for his life,” leader Mikhail Muhammad said. “You can’t keep killing black children.” Spike Lee joined the digital lynch mob and tweeted Zimmerman’s home address. (Except it wasn’t his, and now a couple in their 70’s have had to flee their home in fear for their lives.)

Yes, absolutely, there are pockets of racism in America. But among the myriad problems with a “blame the system” narrative is that it obscures and often silences far greater problems than white on black racist violence.

Martin’s tragic death is a statistical outlier. More whites are killed by blacks than blacks killed by whites (or “white Hispanics“). And far, far more blacks are killed by other blacks. Indeed, if we’re going to use the prism of race to analyze murder rates, then the real epidemic is that of black murderers. Heather Mac Donald of the Manhattan Institute notes that recent data show black males age 14 to 24 commit homicides at a rate nearly 10 times higher than that of young white and Latino males combined. (Undoubtedly due to CWR: Chronic White Racism)

And yet, New York Times columnist Charles M. Blow says “the burden of black boys in America” is fear of racist assaults. MSNBC has handed over vast swaths of airtime to its in-house huckster, Sharpton.

No doubt, white — and “white Hispanic” — prejudice is a problem for young black men, but the notion that it is the singular or chief “burden of black boys in America” is nonsense. Alas, the very people begging for an honest conversation on race will likely accuse you of racism for saying so.

That’s because Liberals don’t have “conversations” about anything; they deliver monologues…without offering any opportunity for rebuttal.

For more on the subject, we turn to Ann Coulter for her usual mix of incredible insight and acerbic wit:

‘POST-RACIAL’ LYNCH MOB

 

Even after the Duke lacrosse case, Texaco executives allegedly using the N-word in private meetings — which turned out to be “St. Nicholas” — the Tawana Brawley case, not to mention virtual hailstorms of racist graffiti and nooses materializing on college campuses, all of which invariably end up having been put there by the alleged victims, the Non-Fox Media (NFM) didn’t even pause before conjuring a racist plot in the shooting death of Trayvon Martin in Florida last month.

Like Captain Ahab searching for the Great White Whale, the NFM is constantly on the hunt for proof of America as “Mississippi Burning.” Over St. Patrick’s Day weekend, the month after Martin was killed, gangs in Chicago shot 10 people dead, including a 6-year-old girl, Aliyah Shell, who was sitting with her mother on their front porch.

One imagines MSNBC hosts heaving a sign of relief that little Aliyah was not shot by a white man, and was thus spared the horror of being a victim of racism.

As it happens, Trayvon Martin wasn’t shot by a white man either, but by George Zimmerman, a mixed-race Hispanic who lives in a diverse (47 percent white) gated community and tutors black kids. But Hispanic is close enough for the NFM. (Which begs the question where La Raza is on the lynching of an Hispanic.) They’re chasing the Great White Whale of racist America and don’t have time to check to see if the whale is actually a guppy.

Since the cat leapt out of the bag on Zimmerman being Hispanic, the media have begun calling him a “white Hispanic.” (Which makes Obama a….?!?) Not being a race-obsessed liberal, I don’t particularly care, but it’s indisputable that Zimmerman is brown. I saw his face carved on the side of a Mayan temple in the Yucatan. Using his mother’s maiden name, he would be admitted to the University of Michigan law school on a full scholarship.

Apart from that, pretty much all that is known with certainty is that Zimmerman called the police to report a suspicious character in his neighborhood, and shortly thereafter he shot and killed Martin.

On the basis of little else, the media conjured a Hollywood script: A “white” man was “stalking” a little black kid — who could be Obama’s son! — confronted him, beat him senseless as the small black child screamed for help, and finally shot the kid dead, “just because he was black.”

Two weeks of nonstop hysteria later, it turns out that every part of that gripping plot is based on nothing that could be called a reasonable assumption, much less a fact. The NFM’s theory of the case might be true, just as it might be true that the loud bang I just heard outside my door is Godzilla returning to terrorize Manhattan. I, like the NFM, have no facts supporting my theory. (Although mine is more credible because Al Sharpton is not involved and none of my facts are provably false, such as the NFM’s claim about Zimmerman being “white.”)

First of all, there’s no reason to believe Zimmerman followed Martin after the police told him not to, which is the linchpin of much excited reporting. Zimmerman told the police, his friends and his lawyer that he walked back to his car after hanging up with the police and was waylaid by Martin. No witnesses have told the press otherwise.

We don’t know if -– as the NFM has baldly asserted — it was Martin yelling “Help!” during the struggle. Before the case became a nationwide sensation, the lead detective told the Orlando (Fla.) Sentinel that the police had played all the 911 calls for Martin’s father, and he said the voice crying “Help!” was not his son’s.

(The father has subsequently retracted that.) (As Alice said, curiouser and curiouser!)

Before the shooting was even a twinkle in the eye of MSNBC, an eyewitness gave a detailed account to the local media, indicating that it was Martin who was on top of Zimmerman, pummeling him, as Zimmerman screamed “Help!” The police report says Zimmerman’s nose was bleeding and his back covered in grass stains when they arrived at the scene. His lawyer and friends say he was treated for a broken nose the next day.

There’s no sense in arguing in public about such facts. The medical records exist or they do not. Of course, the information contradicting the media’s fantasy comes to us only in the form of witness statements and police reports appearing in the press, not as evidence in a formal criminal investigation.

It’s hard to tell where the NFM’s suppositions are coming from inasmuch as they simply report their version as hard fact. But all their evidence seems to come only from Martin’s family and girlfriend. Can we start trying all criminal defendants based exclusively on the testimony of the victim’s friends and relatives?

Among the reasons to be suspicious of the media as impartial judges of the evidence is that they keep showing us snapshots from Martin’s childhood, rather than any recent photos. Without doing research, the average person would think Martin was a slight 12-year-old whippersnapper at the time of the shooting, rather than a strapping 6-foot, 160-pound 17-year-old. Indeed, he was 3 inches taller than Zimmerman, according to the police report.

Why aren’t they showing us Zimmerman’s baby pictures? (And why didn’t we get to see baby pictures of the Duke lacrosse players? I bet they were adorable.)

CNN ceaselessly reported the allegation that Zimmerman could be heard in the background of one 911 call using an archaic racial epithet. Before playing the tape, correspondent Gary Tuchman first announced what the slur was supposed to be (“f*****g coon”). There’s nothing like suggesting the answer in advance to improve reliability! Police should try that in lineups.

Then the same network that couldn’t find the Jeremiah Wright tapes for sale in a church lobby brought in “one of the best audio experts in the business” to enhance the tape — take the bass away here, add volume there — and played the 1.6-second loop again and again, just in case you were not suggestible enough the first time. Still, all that can be heard on the enhanced tape is “cha-chu, cha-chu, cha-chu.” But Tuchman wrapped up this demonstration by saying, “You know, it sounds like this allegation could be accurate, but I wouldn’t swear to it in court. That’s what it sounds like to me.”

To the small percentage of CNN’s audience with triple-digit IQs, it was comedy gold. The only thing missing was Tipper Gore playing the audio backward to reveal satanic lyrics. (Incidentally, the Nexis transcript of the indecipherable “cha-chu” sound reads: “ZIMMERMAN: F*****g coons, f*****g coons. F*****g coons. F*****g coons. F*****g coons.” Except it doesn’t use asterisks.)

All this may give you an inkling of why we rely on the criminal justice system to determine guilt in criminal cases and not the fervid imaginations of the race-obsessed media.

And not Al “Tawana” Sharpton, Jesse “I Was on the Balcony of the Lorraine Motel with Martin” Jackson, Father Phlegmatic, Screwy Louie, Hank “Capsize” Johnson, Barack Attack or Booby Rush.

And in the Environmental Moment, Heritage.org‘s Romina Boccia relates how a new….

EPA CO2 Regulation Effectively Bans New Coal Facilities

 

The Environmental Protection Agency (EPA) released a new rule to regulate CO2 emissions from power plants, which would effectively ban new coal power plants, as its emissions standards are too low to be met by conventional coal-fired facilities.

This stands in stark contrast with the President’s supposed “all of the above energy approach” and sends a strong signal that coal is not part of the President’s energy vision for America. In combination with other EPA regulations that contribute to the premature shutdown of existing coal plants, the EPA’s actions represent one of the greatest threats to the electric sector and America’s energy supply.

The new rule requires power plants to meet an output-based standard of 1,000 pounds of CO2 per megawatt-hour of electricity produced. Other than natural gas-fired power plants built in recent years, most power plants, and especially coal-fired ones, would fail to meet that standard. Bloomberg reports:

The average U.S. coal plant emits 2,249 pounds of carbon dioxide for each megawatt hour of power produced, compared with 1,135 pounds for a natural gas plant, according to the EPA.

While existing power plants and those holding EPA permits for upcoming construction would be excluded, the rule would prevent any new coal-fired power plants from being built unless they were outfitted with carbon-reducing technology, such as carbon capture and storage (CCS). CCS is still a very expensive technology, and questions remain about where to store the captured carbon.

Although the EPA’s CO2 regulations rest on a shaky “endangerment” finding, they would have far-reaching effects on the American economy. Heritage Foundation research studying the economic impact from EPA’s CO2 emissions restrictions found:

Regulating CO2 emissions under the Clean Air Act will burden the economy with higher energy costs, higher administrative compliance costs for businesses, higher bureaucratic costs for enforcing the regulations, and higher legal costs from the inevitable litigation.

For average Americans, the expensive EPA rule would mean higher energy costs, fewer jobs, and a less prosperous economy. A recent video by Energy for America shows the real-life impact of regulations and subsidies for alternative energies—designed to reduce coal’s contribution to the nation’s energy supply—on the residents of Craig, Colorado, an economy fueled by coal.

It’s important to remember that the greatest progress toward environmental protection has not been accomplished by government regulation but through greater economic growth. Economic freedom and freer trade promote economic growth and prosperity, which provides society with the wealth and resources to pursue sound environmental policies. Increased government regulation, on the other hand, would stifle economic growth and could lead to counterproductive environmental results. As Heritage’s Terry Miller and Anthony Kim explain:

Policy efforts aimed at imposing stricter environmental standards…undercut the economic growth necessary for greater efforts to protect the environment. Such regulations only serve as feel-good actions, without generating real “change” that could mitigate climate change and its possible negative impacts.

Case in point: regulations subjecting existing coal plants that wish to make upgrades to costly and exhaustive New Source Review requirements, which actually discourage energy efficiency and safety improvements that plants would undertake on their own accord.

Congress should step up and stop the EPA from bypassing Congress’s sound rejection of cap and trade. The EPA regulations on CO2 are just one of those other ways to skin the cat, as President Obama famously promised.

Meanwhile, EPA Administrator Lisa Jackson maintains the reason she’s deep-sixing coal is the growing abundance of natural gas.  What she fails to mention is her Environazi minions are currently planning the next phase of the all-out war on fossil fuels by imposing new and incredibly onerous regulations on fracking, which critics contend will reduce natural gas production by some 50%.

Here’s the only sign post up ahead as long as Team Tick-Tock’s driving the bus:

On the Lighter Side….

Finally, speaking of things likely to kill you, we’ll wrap up the day with the Automotive Section:

The 1,100 hp Shelby Mustang

 

Carroll Shelby still has some serious mojo. The legendary tuner’s eponymous company, Shelby American, has taken the wraps off its most powerful creation ever, the Shelby 1000. The four-digit number represents the power of the supercharged 5.4-liter engine under the modified Ford Mustang’s hood, more or less.

Stripped to the block and fitted with a suite of customized parts that includes a new Kenne Bell blower, flowed heads, stronger rods, crank and pistons and a sprinkling of “Shelby magic,” the motor puts out a claimed 950 hp in street tune while the company says a racing version is good for 1,100 hp.

….The Shelby 1000 was built to celebrate the 50th anniversary of the introduction of the first Shelby Cobra, and will be available in limited numbers, although the price tag might take care of that itself. The car costs $149,995 on top of the $49,995 price of the Shelby GT500 donor car needed to build it. The Shelby 1000 will make its public debut at the 2012 New York Auto Show.

To borrow a phrase from Andy Robinson in Dirty Harry, “My….THAT’S a big one!”

Magoo