The Republican Lawyer Blog : constitution

Constitutional Crisis Averted, Even After Democrats’ Campaign Lobbying the Court for Obamacare

Maya Noronha — Wed, 19 Sep 2012 05:40:00 GMT

Former Solicitor General Paul Clement said that the Obamacare decision marked a successful outcome of “the long struggle to enforce meaningful limits on the commerce clause.” Georgetown Law Professor Randy Barnett said he and others may not have been successful in “saving the country from Obamacare” but they did achieve the goal of “saving the Constitution for the country.” Preservation of the Constitution occurred even in the midst of unprecedented pressure from Democrats and liberals to uphold the law and to dismiss outright the commerce clause argument as frivolous.

Clement and Barnett were among those that spoke yesterday, the day after Constitution Day, at an annual symposium at the Cato Institute entitled, “The Supreme Court: Past and Prologue, A Look at the October 2011 and 2012 Terms.” Clement delivered the Simon lecture, and the topic was “October Term 2011: A Constitutional Moment?” In brief, Clement’s answer to the question was that the Obamacare decision was actually not a constitutional moment, but “almost” was. Clement said it would have been a “constitutional moment” if pundits and prognosticators had actually been correct that the Court would uphold Obamacare under the commerce clause. (The term “constitutional moment” is a reference to Yale Law School Professor Bruce Ackerman’s theory about wide-scale constitutional change.)

Barnett criticized the “publicity campaign” that Democrats, liberal pundits and liberal law professors put on after the close of Supreme Court oral arguments but before the ruling was issued. He was concerned that the campaign specifically targeted Chief Justice John Roberts. Senate Judiciary Committee Chair Patrick Leahy actually went so far as even lobbying the Supreme Court from the floor of the Senate. Baker & Hostetler partner David Rivkin pessimistically predicted that in the future the Supreme Court will probably face a “similar campaign of intimidation.”

A case is currently pending to challenge Obamacare on the basis of the origination clause, which declares that a bill which institutes a tax must originate in the House of Representatives. But this case could end up being moot. Barnett placed specific importance on the upcoming election. The future of Obamacare lies in the hands of American voters. Obama and Democrats would continue to force the unpopular program on the people, but Romney and Republicans would repeal. Who has control of Congress and the White House will determine whether the price of Obamacare continues to be forced on us.

Happy 225th Birthday to the Constitution!

Maya Noronha — Mon, 17 Sep 2012 06:26:00 GMT

Just how do the media talk about the Constitution, now in the 225th year after it was approved by the Constitutional Convention? Well, according to United States Supreme Court Associate Justice Samuel A. Alito, Jr., the quality of the reporting of the constitutional issues that come before the United States Supreme Court is poor.

On Friday, Justice Alito spoke to Roger Williams University School of Law in Rhode Island, declaring that it is “frustrating” to hear how opinions are “spun” and “reduced to a slogan that you put on a bumper sticker.” Furthermore, he said that the media “read things into the questions” posed by the justices in oral arguments. But Alito said that justices “can’t engage in a back-and-forth with people” because they “speak through [their] opinions.”

Ironically, the media spins their reporting of the same amendment to the Constitution that also provides for freedom of the press: the First Amendment. The First Amendment case that Alito said was reported wrong was Citizens United. Alito explained that “Campaign finance is very complicated.” So complicated that the media is not alone in mischaracterization. President Obama, who lectured about constitutional law at Chicago Law School, publicly mischaracterized the case, which garnered a reaction from Justice Alito during a State of the Union.

Alito mentioned that a justice from the Supreme Court of Canada had said that reporters are briefed about the cases inside a locked room, to which Alito humorously commented, ‘‘I thought this was a wonderful idea. Why don’t we implement this in the United States? Until I found out that at the end of the process they actually unlock the door and they let them out.”

All jokes aside, misreporting of legal issues is a serious problem. Maybe a good way for reporters to prepare for their reporting about the Constitution’s 225^th birthday today is to actually read the Constitution, like the House of Representatives did.

Senate Hearing on Amending the First Amendment

Michael Collins — Thu, 26 Jul 2012 16:31:00 GMT

On Tuesday, Senate Democrats further promoted the idea of amending the First Amendment to the United States Constitution. Their call comes from an unrelenting Democratic effort to overrule the U.S. Supreme Court’s Citizens United decision, which gave corporations the First Amendment right to make independent political expenditures during the election season.

At a partisan Senate Judiciary subcommittee hearing attended only by congressional Democrats, panels of “experts” and Democratic members of Congress exclaimed their outrage one-by-one over the Citizens United opinion.

The lone right leaning voice on the panel, Ilya Shapiro of the Cato Institute, made some important points about the scope of Citizens United. He noted the case overruled a 1990 U.S. Supreme Court decision, and not the “century of law” that President Obama claimed in his 2010 State of the Union address. Further, he said that Citizens United only addressed limits on independent associational expenditures, and not that for candidates or political parties.

In this light, Shapiro notes that the First Amendment under Citizens United now protects political speech “regardless of the nature of the speaker,” and that people now do not lose their speaking rights when they get together and associate. He says the underlying problem is not the under-regulation of independent speech, but the attempt to manage political speech in the first place. “Political money is a moving target that, like water, will flow somewhere,” he said.

Ultimately, Shapiro advocated for a liberalization of the campaign finance regime, instead of further campaign rules set by the very politicians the rules govern. “Let the voters weigh what a donation from this or that plutocrat means to them, rather than-and I say this with all due respect-allowing incumbent politicians to write the rules to benefit themselves,” he said.

Besides Shapiro’s testimony, the panel was dominated by liberals making overheated points about the Citizens United issue. Some notable comments from the panelists include the following:

Senator Dick Durbin (D-IL) equated the need to overrule Citizens United to the need for passing the Reconstruction Era amendments, which outlawed slavery, guaranteed equal protection, and extended the voting franchise to African Americans.

Senator Pat Leahy (D-VT) said that America previously elected as president General Eisenhower, but that Citizens United now allows us to elect General Motors (and other corporations) as president.

Representative Donna Edwards (D-MD) said the Citizens United ruling makes United States elections no longer one person, one vote.

Professor Lawrence Lessig of Harvard University decried the Citizens United decision as a Lochner-era mistake. He also said this opinion and others have shown the U.S. Supreme Court as unable to stay above the political fray, but said Chief Justice Robert’s opinion on Obamacare was an act of “political statesmanship” in the likes of Chief Justice Marshall.

The Constitution v. the Obama Justice Department

Maya Noronha — Tue, 17 Apr 2012 13:22:00 GMT

How is the Constitution at odds against the Obama Justice Department? What about the appointments President Obama made when there was no recess and the Office of Legal Counsel in the Department of Justice attempted to justify after the fact? What about the actions of the president in Libya that the Department of Justice again justified? What about the refusal of the Voting Section of the Justice Department to enforce certain provisions of the law, which would clean voter rolls and protect the military right to vote?

There are many ways that the DOJ is not faithfully adhering to the Constitution. And a group of experts are here to discuss those ways this week.

Charles Cooper, RNLA Vice Chair, will serve as moderator, and testified before the House Judiciary Committee in February on the president’s unprecedented “recess” appointments. Other panelists include J. Christian Adams, former Voting Section Civil Rights Division Department of Justice attorney, Edward Whelan, a former Deputy Assistant Attorney General, and Kathryn Wheelbarger, Deputy Chief of Staff, House Committee on Energy and Commerce and former Counsel to Vice President Dick Cheney. Adams is the author of Injustice, an in-depth look at how the Justice Department is adopting a racial agenda at odds with the Constitution.

How is the Constitution at odds against the Obama Justice Department? Check out this panel at the 2012 National Policy Conference this Friday!

Happy 101st Birthday, Ronald Reagan!

Maya Noronha — Mon, 06 Feb 2012 11:17:00 GMT

Ronald Reagan once said, “I'm beginning to notice that every time they bring out my birthday cake, the top of it is beginning to look more and more like a torchlight parade.” That was in 1986, which would surely pale in light of a cake today, Reagan’s 101st birthday. On this special occasion, the influence Reagan had on such important issues such as the rule of law should be remembered.

Ronald Reagan appointed a record 375 judges. The Reagan presidency dramatically influenced the Supreme Court in particular, as William Rehnquist was elevated to chief justice of the Supreme Court and Antonin Scalia was selected to join him on the bench.

Discussion of Reagan’s influence on American law should not be done without mention of Edwin Meese, III. Meese advised Ronald Reagan while he was the 33rd governor of California and 40th president. As Counselor to the President from 1981 to 1985 and Attorney General from 1985 to 1988, Meese had a tremendous role on legal issues. In an historic speech before the American Bar Association, Meese spoke forcefully for originalism, emphasizing that “the rule of the judiciary generally and the Supreme Court in particular was to serve as the ‘bulwarks of a limited constitution’” and criticizing judges that “roam at large in a veritable constitutional forest.”

RNLA Vice Chair Charles J. Cooper, who served as Assistant Attorney General in the Office of Legal Counsel during the Reagan administration, said of the 75th Attorney General and originalism: “Ed really brought it out of the pages of law reviews and the rarified atmosphere of faculty lounges and academic debates and made it a highly important and visible public policy debate.”

In Reagan’s last speech in the Oval Office, preservation of the Constitution was emphasized. Reagan said, “Almost all the world’s constitutions are documents in which governments tell the people what their privileges are. Our Constitution is a document in which ‘We the people’ tell the government what it is allowed to do. ‘We the people’ are free. This belief has been the underlying basis for everything I’ve tried to do these past eight years.”

Reagan’s approach to the rule of law is notable, showing our government’s leaders that the Constitution is not an afterthought, but in actuality should be the underlying basis for all their work as public servants.

NOTE: Sign up now to come to the Ronald Reagan Building and International Trade Center for the 2012 National Policy Conference. An award named after Edwin Meese, III will be conveyed on an individual who has upheld the rule of law.

Judicial Activism and Obama’s Judicial Vacancy Problem

Andrew Swafford — Wed, 19 Oct 2011 14:58:00 GMT

On October 5, Justices Antonin Scalia and Stephen Breyer appeared before the Senate Judiciary Committee to speak about the role of judges under the Constitution. Senators on both sides of the aisle were quick to come to the issue of why so many judicial vacancies still exist on the federal bench. Of course, it has been widely reported that President Obama has not made filling these vacancies a high priority in his administration. Furthermore, Judicature has reported that the Obama administration’s “judicial selection machinery suffered from organizational and coordination weaknesses.” Nevertheless, Justice Scalia offered an additional reason why the judicial selection process has slowed to a grinding halt: The Living Constitution.

Liberals have long clung to the idea that the Constitution is a living, breathing document, and thus, should reflect the views of contemporary society. Activist judges that employ this kind of judicial interpretation interject their own political beliefs or policy preferences at the expense of reading the actual text of the document. Furthermore, it is a usurpation of the legislative function as judges that have adopted this philosophy have created rights in the Constitution that simply do not exist. This runs contrary to what Scalia referred to as “the real distinctiveness of America which is the separation of powers.” Scalia said that judges should apply constitutional values as they “were understood by those who adopted the amendment” instead of formulating their own ideas about what modern society needs or would want. Justice Breyer, for his part, defended the Living Constitution, asserting that changes in technology and societal beliefs must be considered in matters of constitutional interpretation. Scalia rightly countered that he was not able to discern the beliefs of modern society and argued these matters should be taken up at the voter’s box.

Scalia ultimately reasoned that confrontational judicial nomination proceedings and judicial vacancies were a symptom of this philosophy. The justice noted that instead of the Senate focusing on the right questions such as whether or not a judicial nominee is “a good lawyer,” members must pose the question, “what kind of new Constitution will you write?” Scalia ended by saying he was “hopeful the Living Constitution will die,” Justice Scalia provided some great advice to a President that has both failed to make the judicial nomination process a priority, while at the same time, nominated various individuals to the federal bench that even his Democrat friends in the Senate could not even support. Instead of nominating controversial judges that would impose their own ideas of what the Constitution ought to mean, the President would do well to appoint judges that do not desire to rewrite the Constitution with their own views.

Obomination: Hiding War Behind an Obamism

Maya Noronha — Fri, 15 Jul 2011 12:39:00 GMT

Add another ridiculous euphemism to the list. Obama gave “acts of terrorism” the label “man-caused disasters.” He coined the term “outliers” for the formerly “rogue” countries of North Korea and Iran. Now Obama declared in a 32-page report to Congress that the hostilities in Libya are “limited military operations.” This report follows Deputy National Security Adviser Ben Rhodes’ reference to the deployment in Libya as “kinetic military action.”

According to Politico, the Obama administration is engaging in nothing short of “verbal gymnastics” to avoid admitting that we are at war. Instead of stating the obvious, Obama hopes that the American public will not figure out what he’s really up to – exercising war powers without Congressional approval.

The War Powers Act authorizes deployment of forces by the President for 60 days without consulting Congress when there is “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” Obama justifies the unilateral action in Libya by claiming that “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.” State Department legal adviser Harold Koh appeared at the Foreign Relations Committee on June 28 to defend this position. Koh argued that “The legal trigger for the automatic pullout clock — ‘hostilities’ — is an ambiguous term of art.”

Of this “justification,” Speaker of the House John Boehner (R-Oh.) has said, “It just doesn’t pass the straight-face test in my view that we’re not in the midst of hostilities.” Jonathan Schell points out in an op-ed in the Los Angeles Times that according to the Obama approach:

War is only war, it seems, when Americans are dying — when we die. When only they — the Libyans — die, it is something else for which there is as yet apparently no name…

Some strange conclusions follow from this strange thinking and these strange facts. In the old scheme of things, an attack on a country was an act of war, no matter what. Now the Obama administration claims that if the adversary cannot fight back, there is no war.

It follows that adversaries of the United States have a new motive for — if not equaling us — then at least doing us some damage. Only then will they be accorded the legal protections (such as they are) of authorized war. Without that, they are at the mercy of the whim of the president.

As an academic, Obama should have taught linguistics, not constitutional law. As president, Obama should spend more time grounding his decisions in reasonable interpretations of the law, rather than developing new euphemisms.