Froma Harrop has this to say in the opening lines of her column today:

There was never much doubt that the individual mandate in “Obamacare” was constitutional. As Harvard Law School professor Einer Elhauge had noted, the first Congress in 1790 passed a law ordering ship owners to buy medical insurance for their seamen. Twenty framers of the U.S. Constitution were members, and President George Washington signed the law.

This is not only a bad opinion piece, it is factually incorrect.  There was significant doubt about the law’s constitutionality, just not by Harrop and the people she listens to.  A majority of the Supreme Court not only doubted the law’s constitutionality based on a Commerce Clause justification (which is what Harrop is arguing was never in doubt), but held that it was, in fact, unconstitutional based on that reasoning.  Finally, the 1790 law was passed by Congress pursuant to Article 1, Section 8, Clause 16, which gives Congress broad authority to regulate the militia – a situation that is completely irrelevant to the Affordable Care Act.

Howard Kurtz had this to say in his article today:

Based on conversations with people who know him or have followed him closely, I believe Roberts did not want the court to be in the position of overturning a major law passed by Congress. He instinctively understands that this would be seen as a blatantly partisan act by a court already suspected of political motives. And so he groped his way toward a narrow ruling that would preserve the health-care law without breaking major legal ground.

If a justice on the Supreme Court takes the view that he shouldn’t rock the boat, then on what basis does he serve?  The Court is supposed to protect rights in the face of congressional and presidential overreach.  If it is unwilling to do so, then there is little use for it as the final arbiter of constitutional disputes.

Today’s New Yorker comment by Jeffrey Toobin succinctly demonstrates all that is wrong with progressive judicial philosophy.  Toobin applauds Roberts for siding with the four liberal justices regarding Obamacare because he thinks it (Obamacare) is good policy.  In Toobin’s mind “[i]t was a singular act of courage.”  Rule of law, separation of powers and other principles take a backseat to politics in Toobin’s (and the left’s) results-oriented view of judicial interpretation.

The proof is in the pudding.  Toobin’s second paragraph, the one which first starts to provide analysis, supports the Supreme Court’s decision solely on the basis of political rationales.  First, Toobin says the issue should not even have been close – that the mandate was clearly constitutional.  What does he site as evidence of this – that Republicans initially came up with the concept (a reference to the Heritage Foundation’s initial proposal in the 1990s) and that Romney instituted a similar system in Massachusetts.  That is not a constitutional analysis.  It’s not even a legal analysis.  Toobin’s conclusion – that because nobody challenged the idea when it was making the rounds as a philosophical matter and because it was implemented in Massachusetts it must therefore be constitutional is derisible.  The mandate was being discussed in abstract terms as a means of making healthcare more efficient – the discussion was centered around its policy implications, not its legal status.  Moreover, the discussion, or absence thereof, of the constitutional question surrounding a policy matter has no bearing, whatsoever, in providing evidence that a law is or is not constitutional.  As to the Romney argument, either Toobin is the worst legal analyst in the history of journalism for not understanding the difference between state and federal actions or he is deliberately disingenuous.  Clearly, in this case, it is the latter.

Perhaps my favorite bit of non-reasoning in this article is this passage:

What’s more, five Justices, including the Chief Justice, found that Congress had exceeded its powers under the Commerce Clause when it passed the Affordable Care Act. Supreme Court opinions are usually thick with citations of prior cases, but the key section of Roberts’s opinion, which was seemingly inspired more by Ayn Rand than by John Marshall, has almost none: “Everyone will likely participate in the markets for food, clothing, transportation, shelter, or energy; that does not authorize Congress to direct them to purchase particular products in those or other markets today. The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions.” But the A.C.A. does not “regulate an individual from cradle to grave”; it simply forces individuals to help pay for the medical care that they will almost certainly receive at some time in their lives. As Ruth Bader Ginsburg noted in her separate opinion, “The inevitable yet unpredictable need for medical care and the guarantee that emergency care will be provided when required are conditions nonexistent in other markets. That is so of the market for cars, and of the market for broccoli.” [Emphasis added]

I won’t get into why Ginsburg’s analysis is flawed, and why the broccoli argument is perfectly on point, having addressed the issue in previous posts.  Here, I want to address Toobin’s words, which I have highlighted above.  Toobin finds fault with Roberts for not citing a host of prior cases in his analysis and implies that this is somehow evidence that there are no grounds for finding the Affordable Care Act unconstitutional.  This nugget of reasoning has managed to miss, entirely, the issue before the Court – this was an unprecedented piece of legislation which was a case of first impression for the Court, and thus the Court had no prior cases which were on point.  The primary issue raised by the challengers was that the individual mandate’s justification under the Commerce Clause was something never attempted before and beyond the pale.  For Toobin to ignore this fact speaks to an inability to process opposing arguments.

Later in the piece, we get to the true and fundamental problem of liberal jurisprudence.  Toobin, after stating that Roberts’s tax argument was flimsy and unpersuasive as a basis for upholding the individual mandate states “it led to the correct results.  Any port will do in a constitutional storm.”  That last sentence sums it up more neatly than I ever could, and it is disgusting.

For a perfect example of opinion masquerading as journalism, check out this story in the New York Times which ran on A1 today entitled “Supporters Slow to Grasp Health Law’s Legal Risks” by Peter Baker.

The gist of the article is that the Democrats never took the Constitutional arguments against Obamacare seriously, and thus were unprepared for the robust challenge which, as early as today, may result in part or all of the legislation being overturned.

The fifth paragraph of the column tells the tale:

Looking back, Democrats said they had had every reason for confidence, given decades of Supreme Court precedents affirming Congress’s authority to regulate interstate commerce, and lawyers who defended the law said they had always taken the challenge seriously even if politicians had not. But they underestimated the chances that conservative judges might, in this view, radically reinterpret or discard those precedents.

The last line is the egregious offender.  No defender of the law is quoted here, thereby making the assertion “they underestimated the chances that conservative judges might, in this view, radically reinterpret or discard those precedents” solely the view of the author.  That is not reporting; that is straightforward opinion.  What is more, the main issue in contention – the individual mandate – is front and center precisely because the opponents are arguing that it is not merely an extension of precedent, but a completely novel concept (forcing people into commerce) that has never been addressed before.  By claiming that the justices may “radically reinterpret” precedents, Baker is starting from the assumptions of the law’s defenders, not a neutral point.

Marty Feldstein nailed it spot on in this piece:

That was the purpose of the 1992 Maastricht Treaty, which established the European Union. The influential report “One market, one money,” issued in 1990 under the leadership of the former French Finance Minister Jacques Delors, called for the creation of a single currency, relying on the specious argument that the single market could not function well otherwise. More realistically, advocates of a single currency reasoned that it would cause people to identify as Europeans, and that the shift to a single European Central Bank would herald a shift of power away from national governments.

The problem with the Euro is that it is an attempt to impose political unity, conformity and identity through economic pressure, not merely a currency.  As such, it was born with inherent defects that have now emerged and will remain.

There is a piece in the NY Times today about Obama’s wartime activities by Jo Becker and Scott Shane, which details the process by which President Obama has targeted individuals for assassination.  A few points made in the article deserve comment, such as this analysis near the top of the article, in which the authors allege that Obama’s decision making has “baffled” people on both sides of the aisle:

Mr. Obama is the liberal law professor who campaigned against the Iraq war and torture, and then insisted on approving every new name on an expanding “kill list,” poring over terrorist suspects’ biographies on what one official calls the macabre “baseball cards” of an unconventional war. When a rare opportunity for a drone strike at a top terrorist arises — but his family is with him — it is the president who has reserved to himself the final moral calculation.

“He is determined that he will make these decisions about how far and wide these operations will go,” said Thomas E. Donilon, his national security adviser. “His view is that he’s responsible for the position of the United States in the world.” He added, “He’s determined to keep the tether pretty short.”

Nothing else in Mr. Obama’s first term has baffled liberal supporters and confounded conservative critics alike as his aggressive counterterrorism record. His actions have often remained inscrutable, obscured by awkward secrecy rules, polarized political commentary and the president’s own deep reserve.

In interviews with The New York Times, three dozen of his current and former advisers described Mr. Obama’s evolution since taking on the role, without precedent in presidential history, of personally overseeing the shadow war with Al Qaeda.

It’s really not all that baffling.  Obama, as a liberal Democrat with, what I would term, anti-American/imperial views stemming from a very leftists ideology, opposes, on a theoretical basis, the dominance of America in the world.  However, Obama as the man who “think[s] that [he is] a better speechwriter than [his] speechwriters…. know[s] more about policies on any particular issue than [his] policy directors… [and] think[s] [he’s] a better political director than [his] political director” is fully in favor of unilateral decision making.  It is, unequivocally, the hubris of the individual believing he is better than the system and more important than the principle.  Rules restricting executive authority were well and good for George W. Bush (who declined, for instance, to recess appoint individuals during pro-forma Senate sessions on the grounds that he lacked the authority to do so) because he was “bad,” while such rules should not apply to Obama because he is “good.”

Joe Biden taking a vacation is a great service to our country. At least his sins can only be by omission now.  If only Obama would take more time off…

Over at Reason, Peter Suderman has a very nice piece summarizing Noam Scheiber’s new book.  What I find most interesting (though in no way unexpected) is the conclusion by the Obama administration, and Obama himself, that there is no economic problem that cannot be solved by the pulling of levers in just the right proportions.

In The Escape Artists: How Obama’s Team Fumbled the Recovery, Noam Scheiber, a senior editor at the venerable liberal journal The New Republic, presents a reminder that the senior officials who drive the policymaking process are also people with unique and often clashing personalities. But there is one trait that connects them all: an unshakable belief that there is no economic problem, large or small, they cannot solve through technocratic meddling.

According to President Obama, Google and Facebook owe their existence to the government.

“I believe in investing in basic research and science because I understand that all these extraordinary companies that are these enormous wealth-generators — many of them would have never been there;  Google, Facebook would not exist, had it not been for investments that we made as a country in basic science and research[…] I understand that makes us all better off.”

There are a few problems with this statement (which is aimed at attacking the Ryan budget plan).  First, the Advanced Research Projects Agency, predecessor to the Defense Advanced Research Projects Agency, initially seeded the internet.  One of the major criticisms of the left regarding Ryan’s plan is that the major area where he doesn’t cut enough (as opposed to too much everywhere else) is the defense budget.  Thus, if Obama’s logic is government = ARPA/DARPA and DARPA = internet and internet = Google/Facebook, then Obama has chosen, as his primary example of an area in which the government budget should not be cut, the one area in which his party says there aren’t enough cuts.  Second, his implicit assumption is that the internet would not have been created without ARPA.  Is that really credible?  With the advances in computing power and network communications it was almost inevitable the internet would be created, if not as quickly (see the French Minitel).  Third, by Obama’s logic credit for anything and everything is owed to the government.  He starts at research, but we can go back even farther.  For Google/Facebook to exist, you had to have ARPA, to have ARPA you had to have the Department of Defense, to have the DoD you had to have passed a law providing for its formation, to pass the law you had to have Congress, to have Congress you had to have founded the United States.  Ergo, all inventions and progress stem from government.  But why stop there?  To have the U.S. you had to have Britain, which had to have Romans, which had to have…

There is no doubt that the composition and character of the United States make possible the existence of a host of inventions and thoughts.  A stable democracy, with rule of law and a well functioning securities market are all undoubtedly, in part, responsible for the many wonderful things Americans produce.  Without such features, it would be much more difficult.  However, simply because the environment for individual innovation, which we provide, is a necessary precondition, that does not mean it is sufficient.  The idea that the federal government is responsible, in any direct and meaningful sense of the word, for companies like Google and Facebook is a fallacious notion.

According to the Washington Examiner, last year’s Senate was the laziest in 20 years:

On the passage of public laws, arguably its most important job, the Senate notched just 90, the second lowest in 20 years, and it passed a total of 402 measures, also the second lowest. And as the president has been complaining about, the chamber confirmed a 20-year low of 19,815 judicial and other nominations.

The Secretary of the Senate’s office didn’t comment on the statistics, but it did provide a comparison to action in 2009, the first term of the 111th Senate, when many of President Obama’s initiatives were considered by the Democratically-controlled House and Senate. By comparison the number of Senate bills offered last year was down 30 percent, the number of amendments offered sank 55 percent, and the number of roll call votes dropped 40 percent.

I would never dream of defending Harry Reid’s leadership, but let’s think about the metrics we want to use to measure the success or failure of the Senate.  Given all of the bad law that emerges from Congress, the fact that the upper chamber failed to produce as much legislation last year as in years past may be a very good thing.  The quality of legislation, if there is a causal relationship, is almost certainly inversely proportional to the quantity of legislation produced.