It’s Tuesday, November 15th, 2011….but before we begin, a brief personal observation on the stark contrast between the Conservative and Liberal vision for America; first, from the Right, Captain Jon McKee, USA(R):

Veterans Day at Jemicy School

 

On Friday, November 11, US Army Captain Jon McKee visited the Jemicy Lower and Middle School Campus to share information with the students about the military and his time spent in Iraq. Dressed in combat fatigues, Captain McKee offered a slideshow presentation featuring the conditions he experienced during his tour of duty.  He also displayed a wide array of personal gear and explained how each item was used by soldiers. In the photo, Captain McKee is demonstrating one of the many uses for a ruck sack, with the help of Jemicy student MaKenzie Kowitz.

Now, from the Left, Suffolk University law professor Michael Avery:

A Suffolk University law professor will not collect items for United States troops overseas and thinks it is “shameful” to do so. Law professor Michael Avery sent a five-paragraph e-mail to colleagues in response to a school-wide appeal for care packages for deployed soldiers.

“I think it is shameful that it is perceived as legitimate to solicit in an academic institution for support for men and women who have gone overseas to kill other human beings” wrote Avery. Avery also wrote that he believes sympathy for troops in harms way is “not particularly rational in today’s world.”

The e-mail did not stop with Avery’s objection to the care packages. Avery went on to question the schools intent of the American flag hanging in the atrium:

“Since Sept. 11 we have had perhaps the largest flag in New England hanging in our atrium. This is not a politically neutral act. Excessive patriotic zeal is a hallmark of national security states. It permits, indeed encourages, excesses in the name of national security, as we saw during the Bush administration, and which continue during the Obama administration” wrote Avery.

We don’t agree with Mr. Avery’s position….but we’ll die defending his right to express it.  Hells bells!  Who are we trying to fool; what we’d really like to do is put the SOB up against a wall and shoot his sorry, ungrateful ass!

Sorry Professor; the only irrational party in this story is….

….THEE!  By the way….nice backdrop, you self-righteous ingrate.  So here’s to you, Michael Avery….

Now, here’s the Gouge!

First up, David Rivkin and Lee Casey offer a preview of their upcoming arguments before the SCOTUS, courtesy of the WSJ:

ObamaCare and the Limits of Government

When asked if the health law was constitutional, then-Speaker Nancy Pelosi sneered, ‘Are you serious?’ Now the Supreme Court has decided it’s a worthy question.

 

The Supreme Court has agreed to decide whether ObamaCare is constitutional, granting certiorari in a case brought by 26 states shortly after that law was enacted in March of last year. In so doing, it will be ruling upon the very nature of our federal union.

The Constitution limits federal power by granting Congress authority in certain defined areas, such as the regulation of interstate and foreign commerce. Those powers not specifically vested in the federal government by the Constitution or, as stated in the 10th Amendment, “prohibited by it to the States, are reserved to the states respectively, or to the people.” The court will now determine whether those words still have meaning.

As we argued two years ago in these pages, the Patient Protection and Affordable Health Care Act (aka ObamaCare) is unconstitutional. First and foremost, the law requires virtually every American to have health insurance. Congress purported to impose this unprecedented “individual mandate” pursuant to its constitutional power to regulate interstate commerce, but the requirement is not limited to those who engage in any particular commercial or economic activity (or any activity at all). Rather, the mandate applies to everyone lawfully present in the United States who does not fall within one of the law’s narrow exclusions.

Under our Constitution’s system of dual sovereignty, only states have the authority to impose health and safety regulations on individuals simply because they are present. The Supreme Court has ruled many times that the Constitution denies to the federal government this type of “general police power.” Federal legislation must be grounded in one of the “enumerated” powers the Constitution grants to Congress—such as the power to regulate interstate commerce. Although the Supreme Court has interpreted that power broadly (especially since the 1940s), it has consistently held that the Commerce Clause has limits.

If Congress can require individuals to buy or otherwise obtain and maintain health insurance simply because they may be said to impact commerce by their very existence, without regard to any particular activity in which they have chosen to engage, then there is no limit on federal power. For example, if Congress can require you to buy health insurance because your lack of insurance may, at some point in the future, impose costs on the wider economy, then on the same theory it can require the purchase (or sale) of virtually any good or service, since the failure to have or use the relevant product can always be said to have some economic impact.

Both the trial judge and Court of Appeals in Florida et al. v. U.S. Department of Health and Human Services duly struck down the mandate as outside the scope of Congress’s legitimate authority. It is highly unlikely that the Supreme Court will overturn that decision. To do so would require it to junk nearly 200 years of its own jurisprudence and create a federal government of unprecedented and uncontrolled power.

There are, however, a number of other critical questions the Supreme Court will now resolve. In addition to imposing the individual mandate, ObamaCare revolutionizes the Medicaid program. For more than 40 years, Medicaid has been a cooperative federal/state program to fund medical care for the poor. The states also contribute funds and have enjoyed wide discretion in designing and implementing their own programs. Now, as a means of ensuring the universal coverage ObamaCare set out to achieve, Medicaid has been transformed into a massive new health-insurance program for many in the middle class. The states must accept new, detailed federal requirements or lose all federal Medicaid funding—leaving their neediest citizens without any safety net.

Although there is always an element of choice in accepting federal money, the Supreme Court has clearly stated that if federal funding conditions and threats become coercive, they also violate the Constitution’s fundamental federalism principles. Here, both the trial and appellate judges acknowledged this rule—based on a 1987 case called South Dakota v. Dole—but felt constrained to uphold ObamaCare’s Medicaid provisions because they found no direct and controlling Supreme Court precedent on the point. By accepting certiorari on this question, the Supreme Court has signaled its willingness to determine where that all-important line of federal versus state coercion may be, and whether ObamaCare has crossed it.

The Supreme Court will also consider the question of “severability”—whether the entire statute must be struck down because one or two of its provisions are unconstitutional. The test here is whether Congress would have still enacted the law without the unconstitutional provisions. As the trial judge correctly concluded, there is little question that without the individual mandate Congress would not have enacted ObamaCare’s other provisions, many of which make little sense without that critical requirement.

Finally, the Supreme Court has also agreed to consider one of the highly technical arguments raised in the case, whether the federal Anti-Injunction Act (AIA) prohibits a challenge to the individual mandate before the requirement actually takes effect in 2014. This issue has always been a red herring, arising because the government tried to argue that the individual mandate can be justified under Congress’s power to tax, even if it is insupportable under the power to regulate interstate commerce.

Virtually every lower court to consider ObamaCare—both those that have struck down the law as unconstitutional and those that have upheld it—has agreed that the AIA does not apply here. There is every reason to believe that the Supreme Court will do the same. The AIA was designed to protect federal tax-collection activities, generally requiring that a tax be paid before its legality can be challenged in court. The mandate, of course, is not a tax—but an affirmative regulatory requirement. It is enforced by a penalty. The only connection with the federal tax apparatus is that the penalty will be collected by the Internal Revenue Service from tax refunds otherwise due to violators, and its application here would only postpone challenges to the individual mandate to 2014.

Overall, the Supreme Court’s agreement to review ObamaCare’s constitutionality probably sounds that law’s death knell. When asked about these constitutional issues before the law was enacted, then-House Speaker Nancy Pelosi simply sneered, “Are you serious?” At this point it is safe to say, yes we are.

There’s no question as to the constitutionality of the individual mandate; it’s against everything for which the Founding Fathers stood.  Then again, so was Roe v. Wade and Kelo.  The question isn’t whether Obamascare’s unconstitutional; rather it’s how to proceed when faced with a federal judiciary that ignores the Constitution….and we’re finally forced to defend it against domestic enemies.

We’ll have to take over the ship!

Continuing in the Health Section, as New Media Journal details, this isn’t the change for which many voters hoped:

Obama Awards $443 Million ‘No Bid’ Contract to Big Political Supporter

 

Over the last year, the Obama administration has aggressively pushed a $433-million plan to buy an experimental smallpox drug, despite uncertainty over whether it is needed or will work. Senior officials have taken unusual steps to secure the contract for New York-based Siga Technologies Inc., whose controlling shareholder is billionaire Ronald O. Perelman, one of the world’s richest men and a longtime Democrat Party donor.

When Siga complained that contracting specialists at the Department of Health and Human Services were resisting the company’s financial demands, senior officials replaced the government’s lead negotiator for the deal, interviews and documents show. When Siga was in danger of losing its grip on the contract a year ago, the officials blocked other firms from competing.

Siga was awarded the final contract in May through a “sole-source” procurement in which it was the only company asked to submit a proposal. The contract calls for Siga to deliver 1.7 million doses of the drug for the nation’s biodefense stockpile. The price of approximately $255 per dose is well above what the government’s specialists had earlier said was reasonable, according to internal documents and interviews.

Once feared for its grotesque pustules and 30% death rate, smallpox was eradicated worldwide as of 1978 and is known to exist only in the locked freezers of a Russian scientific institute and the US government. There is no credible evidence that any other country or a terrorist group possesses smallpox.

If there were an attack, the government could draw on $1 billion worth of smallpox vaccine it already owns to inoculate the entire US population and quickly treat people exposed to the virus. The vaccine, which costs the government $3 per dose, can reliably prevent death when given within four days of exposure.

Siga’s drug, an antiviral pill called ST-246, would be used to treat people who were diagnosed with smallpox too late for the vaccine to help. Yet the new drug cannot be tested for effectiveness in people because of ethical constraints — and no one knows whether animal testing could prove it would work in humans.

The government’s pursuit of Siga’s product raises the question: Should the US buy an unproven drug for such a nebulous threat?

Hell yes!  Provided of course the manufacturer’s contributed sufficient funds to The Dear Leader’s reelection campaign!

As regards a related item, we have but one question:

Obama to announce $1B effort to expand health-care workforce

 

And this money will come from….where?  China?!?  Maybe this is the way The Obamao hopes to mitigate the impact of America’s “laziness” on foreign “investment”!

But when it comes to jobs that are quite literally “shovel-ready”….

Controversial Oil Pipeline Plan to Be Rerouted After Threat of Delayed U.S. Approval

 

….our Marxist-in-Chief does all he can to shift American jobs and energy security….

Canada Shops Oil After Pipeline Halt

 

Just a few days after the U.S. said it would delay approval of an oil pipeline that would boost Canadian exports to the U.S., Canadian Prime Minister Stephen Harper said Sunday the country would push to sell its crude to Asian markets instead.

Last week, the U.S. State Department delayed approval of TransCanada Corp.’s Keystone XL pipeline, which is proposed to run from the western Canadian province of Alberta to the U.S. Gulf coast. The agency has final approval because the line would cross the U.S. border.

A decision had been expected by the end of the year, but the approval turned into a political hot potato for President Barack Obama. Proponents in the U.S. called the line crucial for energy security and job creation, while opponents criticized the project for a host of environmental reasons. The State Department ultimately said it would delay a decision on the line until early 2013, to allow it to assess new routes that would bypass an environmentally sensitive stretch of Nebraska.

Mr. Harper, attending the Asian-Pacific Economic Cooperation summit in Honolulu on Sunday, repeated Canadian officials’ disappointment at the decision, and he told reporters he remained optimistic the project “will eventually go ahead, because it makes eminent sense.”

Canadian officials have said in the past that they would seek out other markets, particularly Asian ones, if the U.S. didn’t approve the Keystone project. A separate line that would send crude westward to the Canadian Pacific coast, where it could be shipped to Asia by sea, is currently going through Canadian regulatory approval.

But Mr. Harper’s language in Hawaii was particularly blunt.

“This does underscore the necessity of Canada making sure that we are able to access Asia markets for our energy products,” Mr. Harper told reporters in Honolulu, according to a transcript provided by his office. “And that will be an important priority of our government going forward.” Mr. Harper said he made that point in a meeting the day before with Chinese president Hu Jintao.

….overseas!  Yeah….as if there’s actually an “environmentally sensitive” stretch….

….of Nebraska!  After all, the whole friggin’ state’s covered by nothing but corn, cattle and football fields!

Next up, Michael Barone offers some advice to those who continue to deny the inevitability of Mitt:

Tea Partiers, Like Peaceniks, Upset Political Order

 

It irritates members of both groups when I note the similarities of the tea party movement that swept the nation in the 2010 election and the peace movement of the late 1960s and early 1970s.

But they are similar. Both movements represent the surge in political activity by hundreds of thousands, even millions, of previously uninvolved citizens. Both movements focused on what are undeniably central, not peripheral, political issues: war and peace, the size and scope of government.

Both movements initially proclaimed themselves nonpartisan or bipartisan, but quickly channeled their efforts into one political party — the peace movement in the Democratic Party, the tea party movement in the Republican Party.

Both movements were critical of leaders of the party they flocked to. The presidents who escalated American involvement in Vietnam were Democrats, John Kennedy and Lyndon Johnson.

Similarly, Republican George W. Bush increased federal involvement in education and sponsored the Medicare prescription drug entitlement, and Republican appropriators increased federal spending more than the tea partiers like. (Thank you, John Boehner!)

Any inrush into political activity by hundreds of thousands or millions of people will bring forward a certain number of wackos, weirdoes and witches. Tea partiers, like peaceniks, beat moderate incumbents in party primaries and then lost in November. There were left-wing Christine O’Donnells 40 years ago.

But both movements also thrust forward many solid citizens with strong convictions, and some turned out to have good political instincts. Peace activists meeting in a living room in Denver in 1972 seeking a congressional candidate passed over lawyer Jim Schroeder and settled on his lawyer wife, Pat. She won the seat and turned out to be a competent and well-known House member for 24 years and was, briefly, a non-frivolous candidate for president.

Similarly, in April 2010, a plastics manufacturer from Oshkosh named Ron Johnson decided to run for the U.S. Senate in Wisconsin. Mainstream media ignored him and focused on candidates like O’Donnell as part of its project to depict tea partiers as weirdoes. But Johnson beat a competent and hard-working three-term Democratic incumbent and is now a U.S. senator.

When new people embrace politics, they can change the nature of a great political party. From 1917 to 1968, the Democrats were the more militarily interventionist of our two parties. Since 1968, they have been the party more likely to oppose military intervention. That transformation, whatever you think of it, was the work of the peace movement.

New movements can ultimately strengthen a party, particularly one like the late 1960s Democratic Party, which saw some of its historic constituencies (Southern whites, big-city Catholics) flee its ranks. Similarly, the Republicans in 2006 and 2008 lost many voters they had registered and rallied to re-elect Bush in 2004.

But new movements prove troublesome for the political pros, and nowhere more than in the most problematic part of our political system, the presidential nominating process. (Is it just a coincidence that this is the one part of the system not mentioned at all in the Constitution?)

Peaceniks and tea partiers naturally want nominees who are true to their vision. They are ready to support newcomers and little-vetted challengers over veteran incumbents who have voted the wrong way on issues they care about.

But the things that make candidates attractive to movements can also make them unattractive to independent voters. The Democrats struggled with this in the 1968, 1972 and 1976 cycles. The old-timers pushed through the accomplished Hubert Humphrey over the diffident Eugene McCarthy in 1968, but they lost to George McGovern in 1972. He was a more serious candidate than is generally remembered, but he did lose 49 states to Richard Nixon.

Since then, Democratic candidates have strived to meet peace movement litmus tests. Bill Clinton did so characteristically by saying that he agreed with the arguments of opponents of the 1991 Gulf War resolution but would have voted for it.

Republicans are now grappling with a similar situation. Mitt Romney is next in line, but some of his past positions are — how to put this politely? — in tension with those of the tea party movement. (Most notably, his refusal to admit Romneycare was an error….and failure….of epic proportions.) Tea party types have been scrambling to settle on an alternative, so far without success.

Tea partiers will grouse if Romney is nominated. But maybe they need patience and perseverance. One lesson of history is that a movement can reshape a party. Another is that it takes time.

Meanwhile, back in Happy Valley, two headlines that defy belief:

Judge Who Freed Sandusky on Bail Volunteered at His Charity

 

….another example of the New York Times downplaying violence to suit an ideological agenda. An editorial denouncing mandatory minimum sentencing contains this astonishing passage:

The racial disparities in sentencing are also stark. In some cases, mandatory minimums can be reduced for offenders if the crime did not involve violence or a gun. But most African-American drug offenders convicted of a crime carrying a mandatory minimum sentence could not meet these and other requirements: only 39 percent qualified for a reduction compared with 64 percent of whites.

In order to make it appear as if blacks are treated unfairly, the Times pretends that sentencing violent offenders more harshly than nonviolent ones is an arbitrary act.

It’s classic Dan Rather/Mary Mapes journalism: even if we got the facts completely wrong….the story’s TRUE!

On the Lighter Side….

Finally, we’ll wrap things up with the Wide, Wild World of Sports, and a story that begs the question, “What’s your leverage when you threaten to shut down a sport….

Players Reject NBA’s Offer, Begin to Disband Union

 

Magoo