It’s Wednesday, April 4th, 2012….and here’s The Gouge!

Leading off the mid-week edition, a few items related to The Dear Misleader’s latest attempt as misdirection; first, James Taranto catalogues….

The Man Who Knew Too Little

President Obama’s stunning ignorance of constitutional law.

We were half-joking yesterday when we asked if Barack Obama slept through his Harvard Law class on Marbury v. Madison, the 1803 case in which the U.S. Supreme Court first asserted its power to strike down unconstitutional laws. It turns out it’s no joke: The president is stunningly ignorant about constitutional law.

At an appearance this afternoon, a reporter asked Obama a question following up on yesterday’s comments: “Mr. President, you said yesterday that it would be ‘unprecedented’ for a Supreme Court to overturn laws passed by an elected Congress. But that is exactly what the court’s done during its entire existence. If the court were to overturn the individual mandate, what would you do, or propose to do, for the 30 million people who wouldn’t have health care after that ruling?”

Were he twice as smart as he actually is, he’d remain less than 1/2 as smart as he holds himself to be.

Obama’s answer to the question was that he expects to win in court, and “as a consequence, we’re not spending a whole bunch of time planning for contingencies.” He went on to talk at some length about the “human element”–that is, people who would supposedly suffer in the absence of ObamaCare. Message: Obama cares, though not enough to spend “a whole bunch of time planning for contingencies.”

But the most interesting part of his answer was the beginning, in which he tried to walk back, or at least clarify, his statement from yesterday. He spoke slowly, with long pauses, giving the sense that he was speaking with great thought and precision:

“Well, first of all, let me be very specific. Um [pause], we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner, right? So we’re going back to the ’30s, pre-New Deal.”

In fact, Lochner–about which more in a moment–was decided in 1905. Thirty years later, after the New Deal had begun, the high court unanimously struck down one of its main components, the National Industrial Recovery Act, as exceeding Congress’s authority under the Interstate Commerce Clause. The case was A.L.A. Schechter Poultry Corp. v. U.S. (1935).

It is true that in subsequent New Deal cases, the court vastly expanded Congress’s power to regulate “interstate commerce,” although it has never done what the administration asks it to do now, namely authorize Congress to force individuals to engage in commerce. Obama seems to have been trying to make the accurate observation that since the ’30s the court has not struck down a federal law that applies to economic activity on the ground that exceeds Congress’s Commerce Clause authority.

But in citing Lochner, the president showed himself to be in over his head. The full name of the case, Lochner v. New York, should be a sufficient tip-off. In Lochner the court invalidated a state labor regulation on the ground that it violated the “liberty of contract,” which the court held was an aspect of liberty protected by the 14th Amendment’s Due Process Clause. (The legal doctrine at issue, “substantive due process,” refers to the meaning of “life, liberty and property” under the Due Process Clause.)

Lochner, which was effectively reversed in a series of post-New Deal decisions, did not involve a federal law–contrary to the president’s claim–and thus had nothing to do with the Commerce Clause, which concerns only the powers of Congress.

It’s appalling that any president would have the effrontery to lecture the Supreme Court about a pending case. It’s astounding that this president, who was once a professor of constitutional law at an elite university, would do so in such an ignorant fashion.

Next, though the MSM’s apparently unconcerned about Tick-Tock’s abysmal understanding of the document he swore to protect and defend, as this forward from Bill Meisen, courtesy of CBS News details, somebody is:

Appeals court fires back at Obama’s comments on health care case

 

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president’s bluff — ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president’s comments yesterday about the Supreme Court’s review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was “confident” the Court would 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.”

Overturning a law of course would not be unprecedented — since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise — despite the president’s remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, (A case with which Laersvang’s constitutional-law-professor-boss is obviously unfamiliar). according to the lawyer in the courtroom.

Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick–both Republican appointees–remained silent, the source said.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don’t have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama’s comments yesterday about judges being an “unelected group of people.”

We’re frankly stunned by the factual accuracy of the CBS report, though they couldn’t help but note all three judges were appointed by Republicans….as if The Obamao’s deliberate misrepresentation of the role of the federal judiciary were somehow subject to political interpretation.

Lastly, in the Conn Carroll takes note of what he terms….

Obama’s unconvincing confidence

 

How confident is President Obama that the Supreme Court will uphold his signature domestic accomplishment? So confident, he felt the need to tell the press about it no less than five times yesterday:

With respect to health care, I’m actually — continue to be confident that the Supreme Court will uphold the law. … 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. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step. … We are confident that this will be over — that this will be upheld. I’m confident that this will be upheld because it should be upheld.

Obama’s attack on “an unelected group of people” is pretty rich, considering that the only way his health care law plans to reduce health spending is by empowering 15 unelected bureaucrats to set wage and price controls for the entire health care industry.

And who is he kidding by asserting that Obamacare “passed by a strong majority?” Every American knows that Obamacare only became law after the administration bribed every last Democratic holdout and pulled every trick in the legislative book. As a result, Obamacare has been wildly unpopular ever since it became law.

And not that this should matter when it comes to a law’s constitutionality, every poll taken on the subject has found that majorities of Americans already believe the law is unconstitutional:

A recent Reason-Rupe poll found thats 62 percent of Americans believe it is unconstitutional for Congress to mandate the purchase of health insurance. The most recent Hill poll found that 50 percent of Americans believe the law should be struck down. An April 2nd, Rasmussen poll found that 54 percent of likely U.S. Voters at least somewhat favor repeal of the health care law, and 41 percent strongly favor it. And, according to Gallup 72 percent of Americans believe the individual mandate is unconstitutional.

Americans do not like Obamacare, they believe it is unconstitutional, and they want the Supreme Court to overturn it. No wonder Obama feels the need to tell himself how confident he is he’ll prevail.

This isn’t confidence; it’s a CON!  As per Webster’s: confidence game: a scheme in which the victim is cheated out of his money after first gaining his trust; hustle, racket, swindle, double cross (Just ask Bart Stupidak or Cardinal Dolan.), fix, gyp, rip-off, squeeze, ruse, subterfuge, trick.

Meanwhile, The Disjointed One continues to spread his gospel of hate, division and envy:

Obama lambastes GOP budget plan as ‘Trojan horse’, ‘thinly veiled social Darwinism’

 

Yeah….whatever.  In a related item, here’s a preemptive statement which accurately anticipated The Obamao’s latest flight from reality:

Ryan’s Office Contrasts Their Approach with Obama’s

 

If you think things are bad now, try to imagine four more years….without restraint of ANY kind!

Coast to coast, America will make Detroit look like the Garden of Eden.

But in a thought-provoking piece in the WaPo, Marc Thiessen sees a potential downside in the SCOTUS staying true to the Constitution:

The real reason SCOTUS could save POTUS

 

Obamacare may be President Obama proudest legislative achievement, but the fact is it has been a political disaster for Democrats. The unpopular law has galvanized Obama’s conservative opponents, driven away moderates and independents, and hung like an albatross around the neck of the U.S. economy. A decision by the Supreme Court to overturn the law in its entirety could be the best thing that ever happened to Obama’s prospects for reelection.

If the Supreme Court were to lift the weight of Obamacare from the economy, we might see a spurt of job creation and capital coming off the sidelines that could be extremely helpful to the president come November. As Sen. Tom Coburn (R-Okla.) recently put it, “If [Obamacare] is thrown out, you’re going to see the economy bump up, just simply because [of] all the people who are not hiring with the anticipation of what it’s going to cost and the mandates associated with it. I think you’re going to see a big bump in the economy if it gets thrown out.”

Coburn is right. A recent Gallup survey found that 48 percent of small businesses said the potential costs of Obamacare were holding them back from hiring new workers. As one small business owner told “PBS News Hour” late last year, “when we bring on a new employee, we don’t know what that employee truly is going to cost us in 2014,. And we’re not in the practice of hiring people to then lay them off.”

Indeed, analysts at UBS Investment Research have called Obamacare “arguably the biggest impediment to hiring” in our economy (which is saying a lot considering the pending expiration of the Bush tax cuts and the massive regulations Obama has proposed for the energy sector). One reason is that businesses with more than 50 fulltime employees face large annual penalties if even one of their employees qualifies for subsidies from health exchanges. The effect, according to the National Federation of Independent Business, is to “encourage businesses to downsize, to lay off employees, to shift from full-timers to part-timers, and to avoid hiring individuals who are likely to obtain subsidies and trigger penalties on the employer.” A Supreme Court decision to overturn Obamacare would eliminate these perverse incentives against hiring overnight.

Just look at the new medical device tax that is slated to take effect in January 2013. This tax is already causing medical technology companies to lay off workers. Stryker Corp. — an orthopedic device giant — announced in 2011 that it was laying off 5 percent of its workforce as a direct result of this new tax, which it says will cost the company $150 million. Other device makers have also announced layoffs and plans to move production of their devices offshore. Invalidating the entire bill would eliminate this tax before it can take effect.

Not only could a decision to overturn Obamacare give our anemic recovery a jolt just in time for the November elections, it would also transform the partisan landscape. If the law survives, conservatives know their last hope for stopping Obamacare would be legislative repeal. They would thus be more energized than ever to defeat Obama and take control of the Senate as well as the House in November. But if the law is overturned, one of the central rallying points for conservatives going into the fall campaign is removed.

Supreme Court rejection also helps Obama with moderates and independents. A recent Washington Post/ABC News poll found that 70 percent of independents want the Supreme Court to strike down the individual mandate or Obamacare entirely. Many of these independent voters dislike Obamacare, but do not necessarily dislike Obama. If the law is thrown out, and the economy is improving, they might take another look at the president come November.

Many on the left are hoping that if the court does overturn the individual mandate, it will stop short of invalidating the entire law. The irony is that a partial rejection would be the worst possible outcome for the president. Partial rejection would not remove the uncertainty that is preventing employers from hiring new workers — meaning Obama would get no economic bump. And with most of the law still on the books, conservatives would still be energized to “finish the job” at the polls in November. Obama would suffer the same humiliation as full rejection, but without any of the political or economic benefits.

No doubt a finding that Obamacare is unconstitutional would be a personal rebuke to the constitutional law professor in the Oval Office. It would certainly be a massive blow to the larger progressive dream of government-funded universal health care. But it might be Obama’s best shot at a two-term presidency.

Thiessen certainly has a point; but to borrow a phrase from Honest Abe (The Obamao’s polar opposite) in his famous letter to George McClellan, what we ask of the SCOTUS is to abide by the Constitution….and we’ll risk the second term.

Moving on, in this next item from American Spectator, courtesy of the AEI, Peter Walliston relates the Left’s default defense….after first throwing the “race” bomb of course:

The ‘big lie’ defense

The painful task of taking on the left

 

“It’s always painful to take on the myths and ideological narratives of the left. The pundits of the liberal (excuse me, “progressive”) media make a pretense of listening to reason, but when their views are challenged, they become abusive. You are not honestly trying to find the truth; you are making up data, actually lying. If you are skeptical about anthropogenic global climate change, you’re not just a skeptic-you’re a denier (as in Holocaust denier). And if you disagree with the standard left-wing narrative about the financial crisis, even if you can support your position with data, you are using the “Big Lie” technique (again, repulsively invoking the likes of Goebbels). This attitude and way of dealing with disagreement should have no place in our political system, but seems to have become the stock in trade of the most respected spokesmen of the left.“….

http://www.aei.org/article/economics/financial-services/banking/the-big-lie-defense/

Name-calling: the last refuge of those whose argument is devoid of fact.

Which brings us to the Money Quote, courtesy today of CNN (gasp!), George Lawlor and Ilya Shapiro writing about Progressives’ incredulity

“….No, the reason that the government had a bad week is that its position is weak.  It has become abundantly clear that the reason that the solicitor general failed to articulate a principled limit to his theory of federal power – despite knowing that this would be the primary question he would face – is that there isn’t one.

No matter how much Yale’s Akhil Amar and Northwestern’s Andrew Koppelman protest, we must recognize the validity of an interpretive theory that gives judges the power to enforce the Constitution’s structure.  Features such as federalism and the separation of powers are there not as some abstract exercise in applied political theory but to protect individual liberty.  Before we even get to the Bill of Rights, which was a hotly debated afterthought, or the political checks on power, we have a constitutional design that denies the federal government the sort of plenary “police” power that states enjoy.

That’s why the infamous “broccoli hypothetical” is so telling: Economists say that diet and exercise have a greater effect on taxpayer spending on healthcare than rates of ownership of insurance, so if anything healthy-food and gym-membership mandates have greater constitutional warrant than what we’re dealing with now.

By the same token, Congress’s ability to concoct lots of well-intentioned national reform schemes doesn’t give it unfettered means to pursue those noble ends.  It is a theory that would allow such unchecked federal power every time Congress acts under a self-declared “national problem” that cannot survive serious constitutional scrutiny.

Returning to Justice Kennedy, “here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the Federal Government to the individual in a very fundamental way.”

And in International News of Note, the WSJ‘s Bret Stephens updates us on Team Tick-Tock’s latest foreign policy fumble:

The Very Model of a Modern Muslim Brother

Meet Khairat Al Shater, poster boy of ‘moderate’ Islamist politics.

 

In Egypt’s upcoming presidential election, there are three main contenders. One is a septuagenarian dinosaur who served a decade as foreign minister in Hosni Mubarak’s dictatorship. Another was quoted in 2004 by Ikhwanonline—the website of the Muslim Brotherhood—calling for “Arab and Muslim peoples to prepare for Jihad, and boycott all forms of dealing with the Zionist-American enemy and the states that support it.”

And then there’s the third guy, who’s the real hardliner.

Welcome to Arab democracy, post-Arab Spring. That third guy is Hazem Salah Abu Ismail, a telegenic Salafist who admires Iran, wants to abolish the peace treaty with Israel, end trade with the West, and have women work at home. The Weekly Standard carried an instructive piece about him in September, warning that he had a good shot at winning the presidency. On Sunday, the New York Times got around to taking note of him, too, apparently since the State Department has also come around to thinking he could win.

Which brings us back around to candidate No. 2. He’s Khairat Al Shater, a multimillionaire businessman who was the Muslim Brotherhood’s deputy head and de facto CFO until last week, when he resigned the Brotherhood (with its blessings) to run for president. Though the Brotherhood had pledged not to field a candidate, it’s doing so anyway out of frustration with the reluctance of Egypt’s military rulers to cede effective power more quickly. And that’s OK with the Obama administration, partly as a hedge against a possible Abu Ismail victory, partly because they’re OK with him.

Mr. Shater, the Times reports, “is in regular contact with the American ambassador, Anne Patterson, as well as the executives of many American companies here, and United States officials have praised his moderation as well as his intelligence and effectiveness.”

About Mr. Shater’s intelligence and effectiveness, there’s little debate. But as the quote from Ikhwanonline suggests, “moderation”—except perhaps in the broader company he keeps—is another matter.

So, on the subject of Israel, Mr. Shater noted that the killing of Hamas’s Ahmed Yassin was “a heinous crime corresponding to the perfidious nature of the Zionist enemy.” As for negotiating with Israel, he called it “mindless”: “The only way” to deal with the Jewish state, he insisted, “is jihad.” He faulted “the enemies of Islam” for trying to “distort and remove [jihad] from the hearts and minds and souls of Muslims.” He blasted the U.S. for preventing “the Islamic nation in its entirety” from eliminating “the usurper Zionist enemy.”

Of course that’s just Israel, and what else is a leading Muslim Brother supposed to say? Still, given that the Egyptian-Israeli peace treaty is a cornerstone to U.S. policy in the Mideast, it might at least call into question the wisdom of the U.S. becoming comfortable with a Shater presidency.

Then there’s Mr. Shater’s ideas about governance in general, spelled out in a lengthy talk he gave last year in Alexandria about the history, philosophy, methods and ambitions of the Brotherhood. (An English translation will be available later this month at the Hudson Institute’s currenttrends.org.)

A few sentences in Mr. Shater’s talk will come as music to Western ears: He calls for an independent judiciary, rule of law, economic development and the peaceful rotation of power. But that has to be understood in the context of Mr. Shater’s broader aims: “Restoring Islam in its all-encompassing conception; subjugating people to God; instituting the religion of God; the Islamization of life.” His notion of an ideal citizen is a cadre: “Every individual in the Society should be . . . a walking Quran.” Similarly, his notion of religious piety is organizational commitment: “With individual piety the issues connected to organizational developing must also be present.”

More important, while Mr. Shater believes that different historical circumstances require different organizational tactics, he is adamant that the Brotherhood’s goals must remain fixed and unyielding.

“No one can come and say, ‘let’s change the overall mission’. . . . No one can say, ‘forget about obedience, discipline and structures. . . . No. All of these are constants that represent the fundamental framework for our method; the method of the Muslim Brotherhood. It is not open for developing or change.”

What Mr. Shater is advocating, in other words, is the creation of flexible democratic political structures within the rigid framework of a quasi-totalitarian society. And like all totalitarian visions, it even comes with its own Guardians of Virtue: “The Revolution,” he says, “needs to become perpetual,” with a core group of “one or two million” to safeguard the revolution from its enemies. In the old Soviet Union, that job was done by the KGB. In Iran today, it’s the IRGC.

Is this vision of a regime really compatible with American values and interests? People in the Obama administration seem to think so. Hang on, wasn’t there a third candidate? Amr Moussa, dinosaur, is looking better all the time.

They say you can’t tell a book by it’s cover, but seriously, can you imagine Shater as anything BUT….

….a murderous thug?!?

On the Lighter Side….

Then there’s these two gems from John Berry:

Finally, in the Eugenics Section, though Health.com had their own list that originally accompanied the headline, here’s what we deem to be the….

9 worst birth control mistakes

With the exception of the young man sporting the blue tie and vest, pick yourself nine….any nine; you can’t help but make America a better place!

Magoo