Le·gal In·sur·rec·tion

It always has been about control, not health care.



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In my post yesterday regarding the health care mandate, I suggested that if the courts held that the health care mandate were constitutional, then the Congress would have the power to declare weekly Blue Light Mandates.

Given the potentially sweeping Congressional power to impose mandates, I asked readers to come up with some suggestions as to mandates they would like to see imposed.

After all, the day will come when Republicans control both the Congress and the White House, so we need to be ready at 3 a.m. on Day One.

Here is the winning suggestion, from reader Malclave:

Mandate that all US citizens must annually purchase one handgun, rifle, or shotgun.

While we're at it, everyone should be required to purchase 2 packs of cigarettes a week. Smoking them, of course, will be illegal.

Under the legal reasoning of the supporters of the health care mandate, I believe the Guns & Tobacco Mandate would pass constitutional muster.

The right to keep and bear arms specifically is protected by the Second Amendment to the Constitution. Since firearms are manufactured using metals and other materials shipped in interstate commerce, and are shipped across state lines, the federal government has a legitimate interest in regulating such activities, consistent with the Second Amendment. The mandated purchase of firearms would help maintain a well-functioning national weapons manufacturing and sales market, and thereby would further a legitimate governmental purpose.

As to tobacco, the fertilizer used to grow the tobacco is shipped in interstate commerce, as are the leaves for processing and manufactured end product. The ban on smoking the product once purchased also would be constitutional, since smoking contributes to health care costs which are assumed or subsidized by the federal government. Since heavy taxes are levied on tobacco, including taxes used to fund health care services, the government has a legitimate purpose in maintaining a steady flow of purchases and making sure the cancer sticks were not smoked.

Although not stated in Malclave's proposal, I believe it is implicit that in the event a citizen or alien lawfully present in the United States failed to make such purchases, there would be a tax imposed based upon how evil the person was, as expressed numerically by his or her adjusted gross income.

Hence, the Guns & Tobacco Mandate really is just a tax, so it's all good.

I would add one procedural nuance to the Guns & Tobacco Mandate:

We will pass it through budget reconciliation if Democrats try to filibuster.

Of course, the Guns & Tobacco Mandate would not actually improve the lives of the American people any more so than will the health care mandate. But that is not the measure of constitutionality.

As the health care mandate demonstrates, stupid stuff devised by arrogant elitist control freaks who think they know better than the rest of us how we should live our lives, can be constitutional.

The Guns & Tobacco Mandate is the mandate we have been waiting for. The look on liberals' faces will be priceless.

And it definitely would be a big f-ing deal.

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The mandate is front and center in the constitutional challenges to Obamacare's requirement that everyone purchase health insurance or suffer penalties.

I've been posting about the mandate since last summer, since the mandate for the first time punishes and taxes the failure to engage in economic activity.

Although Obama opposed a mandate during the campaign, it should not be a terrible surprise that he would trumpet a law requiring people to engage in economic activity he deemed central to his overall health care plans:

Barack Obama will require you to work. He is going to demand that you shed your cynicism. That you put down your divisions. That you come out of your isolation, that you move out of your comfort zones. That you push yourselves to be better. And that you engage. Barack will never allow you to go back to your lives as usual, uninvolved, uninformed.

Whether such a mandate is constitutional is the subject of another good discussion at Volokh Conspiracy, this time from David Kopel (h/t Instapundit), Is the tax power infinite?:

One source of the impending constitutional challenge to the Obamacare mandate is that exceeds the enumerated powers granted to Congress under Article I, section 8....

Does Congress have the infinite power to control people’s behavior (such as by ordering them to engage in commercial transactions) via the tax power? I suggest not. When the Bill of Rights was being debated in front of Congress, the skeptical Rep. Theodore Sedgwick of Massachusetts asked if there should also be an enumeration that “declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper.” 1 Annals of Congress 759–60 (Aug. 15, 1789). Sedgewick’s point was that national laws about bedtimes and hat-wearing were self-evidently beyond the authority of Congress.

However, if the tax power means that Congress can order citizens to buy something they don’t want to buy, why does Congress not have the power to assess taxes on people who get too little sleep, or too much sleep, and thereby harm their own health and the public fisc? Or who wear hats so little that they increase their risk of skin cancer? Or who wear hats so often that they dangerously reduce their levels of vitamin D?

If the government can force people to purchase private health insurance under threat of penalty because such purchase is necessary for the health care insurance system to work, then why not have Congress decree weekly "Blue Light" mandates to further various legislative purposes.

How about requiring people to replace the brakes on their cars, even if not yet worn out, to lower the risk of accidents? Or reversible ceiling fans to lower energy use? Or two shovels, one for themselves and one for a community shovel ready project (if they can find one)?

Any other suggestions?

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Kirsten Gillibrand should be toast in November, if only the Republicans could find someone with some decent name recognition and background to run against her. There simply is nothing remarkable about Gillibrand, and other than the support of Chuck Schumer, there is no reason Gillibrand should win reelection.

There is such a person, if only he would run:

There's a possibility of at least one exciting race in the Empire State this fall. If former Governor George Pataki were to get in the Senate race against appointee Kirsten Gillibrand, New York-based pollster Siena tells us that he would currently lead her by a 45%-39% margin.

Normally we would see that as atrocious polling numbers for Gillibrand, but let's remember that she is not your usual incumbent and Pataki is not your usual challenger. Her 32-29 fav/unfav number is tepid, but a full 39% of the electorate doesn't have an opinion. Pataki, a three-term Governor, has a 56-33 fav/unfav spread, with only 10% without an opinion. Unlike most matchups, the incumbent here probably has more room for growth than
the challenger.

The filing deadline isn't until July, so Pataki has plenty of time to make up his mind.

George, please do not miss this opportunity to "make history" by restoring balance to the NY congressional delegation. We certainly need it (emphasis mine):

Sen. Chuck Schumer apologized today after word got out that he called a flight attendant a “bitch” for ordering him to follow the rules and turn off his cellphone before takeoff....

“Bitch!” Schumer remarked to Gillibrand after the attendant walked away.

Gillibrand’s office initially gave Schumer cover, telling Politico.com that the senior senator was “polite” and that “he turned off his phone when asked to.”

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Mahamed El-Erian is the well-regarded CEO of PIMCO, which manages investments for client accounts and is one of the world's largest bond investors. In a tweet not long ago, El-Erian posted his outlook for our economy:

This outlook puts us squarely on the European track, as I noted long ago in U.S. Hits Highest Unemployment Rate Since ... Europe.

The difference between this recession and prior recessions is that the Obama administration policies are turning what could and should have been a temporary rise in unemployment into a permanent feature of our economic system.

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Some more thoughts on the worst piece of legislation "since the Great Depression," in no particular order:

• Democrats won the messaging war. Democrats succeeded in portraying the bill as being about "giving" people "health care." Even Republicans used the terminology. In fact, everyone has hospital care and almost everyone has other health care services paid for either through private insurance, existing government programs, voluntary services, charities, etc. The bill was, at best, about providing health care insurance to about 10% of the population who already have health care, half of whom go directly on Medicaid; as reimbursement rates remain low, and providers cannot recoup the costs from private insurers, these patients will experience a shortage of providers, and decreased health care services even though they have insurance. This is a complicated message, but true.


• It's the taxes, debt and deficit. The CBO score was a joke because of the unrealistic assumptions the CBO was required to follow. The news in the coming months will be about higher national deficits and debt. As the "doctor fix" and other unrealistic assumptions play out legislatively, Republicans need to make the public understands that the Democrats lied about the true cost of the legislation.


• The "doctor fix," and other costs which should have been included in the bill, but were not included in order to deceive the public, should be opposed. Obamacare should have to live on its own merits, which means it dies fiscally.


• It's also the jobs, stupid. If, as seems likely, the job market does not improve or slightly worsens, the blame needs to be placed -- as it correctly should be -- squarely at the feet of a President and party whose priority has been a deceptive and destructive health care plan, not helping the private sector grow. Democrats can talk their way out of almost anything, particularly with the help of the mainstream media, except the job numbers.


• It's about the children and grandchildren. Is all the doom and gloom warranted? Yes and No. The bill really is that bad, and it is true that entitlements rarely are scaled back, much less eliminated. But it also is true that we are living in interesting times. People are motivated by and scared of the national debt and our trillion dollar deficits. If given the choice between national bankruptcy and giving up some promised future benefits, I believe that the vast majority of Americans will be willing to give up something they have not yet received in order to secure the nation for their children and grandchildren.


• Elections matter. Those of you considering third parties need to understand that we are at a crossroads. A third party will ensure that Nancy Pelosi and Harry Reid continue to frame national policy, and any chance of salvaging the nation from the destruction of Obamacare (and cap-and-trade, and so on) will be lost. If you want that, then by all means run third party candidates. If you do not want that, then work to restore fiscal discipline within the Republican Party, and support Republican candidates.

The morning after the morning after, and Obamacare still stinks.

Update - The "messaging" war: Numerous commenters think I am off point in stating that Democrats won the messaging war, based on the unpopularity of the bill. It is true that we won most of the battles, but the overall message that this bill does not "give" 30 million people "health care" was lost. The debate should have been over the damage to the 255 million people who have health insurance coverage, but it wasn't. Would it have made a difference? Perhaps not for the vote, but just you wait and see how the Democrats will oppose repeal or even a scale back - "You are taking health care away from 30 million people!"

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At first, I thought this was a hoax, so I held off posting. But apparently it is for real, University of Ottawa's letter to Ann Coulter.

I am reprinting it in full, because it is a paradigm of intolerance of opposing conservative viewpoints under the guise of promoting freedom of expression (emphasis mine):

Dear Ms. Coulter,

I understand that you have been invited by University of Ottawa Campus Conservatives to speak at the University of Ottawa this coming Tuesday. We are, of course, always delighted to welcome speakers on our campus and hope that they will contribute positively to the meaningful exchange of ideas that is the hallmark of a great university campus. We have a great respect for freedom of expression in Canada, as well as on our campus, and view it as a fundamental freedom, as recognized by our Canadian Charter of Rights and Freedoms.

I would, however, like to inform you, or perhaps remind you, that our domestic laws, both provincial and federal, delineate freedom of expression (or "free speech") in a manner that is somewhat different than the approach taken in the United States. I therefore encourage you to educate yourself, if need be, as to what is acceptable in Canada and to do so before your planned visit here.

You will realize that Canadian law puts reasonable limits on the freedom of expression. For example, promoting hatred against any identifiable group would not only be considered inappropriate, but could in fact lead to criminal charges. Outside of the criminal realm, Canadian defamation laws also limit freedom of expression and may differ somewhat from those to which you are accustomed. I therefore ask you, while you are a guest on our campus, to weigh your words with respect and civility in mind.

There is a strong tradition in Canada, including at this university, of restraint, respect and consideration in expressing even provocative and controversial opinions and urge you to respect that Canadian tradition while on our campus. Hopefully, you will understand and agree that what may, at first glance, seem like unnecessary restrictions to freedom of expression do, in fact, lead not only to a more civilized discussion, but to a more meaningful, reasoned and intelligent one as well.

I hope you will enjoy your stay in our beautiful country, city and campus.

Sincerely,

Francois Houle,
Vice-President Academic and Provost,
University of Ottawa

I wonder if this is what Democrats really mean when they say they prefer the "Canadian System"?

If "liberals" are an "identifiable group" under the Canadian criminal code, Ann should plan on bringing enough clothing for a very long stay.

The Other McCain has a round-up of commentary about the letter.

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Last night was bad. The law passed by the Senate and House really is that horrible.

But it's the morning after, and your mourning should be over.

The mainstream media and the nutroots will try to demoralize you, and there will be plenty of gloat to go around.

But remember how we got to last night.

November 4, 2008, was the culmination of multiple generations of journalistic and educational malpractice and liberal guilt, malfeasance by Republicans who lost their way while in power, and a mass delusion on par with the tulipomania of 17th century Holland.

On November 5, 2008, did any one of you think that over 16 months later Obama would barely be able to pass a truncated version of his dream of single payer, and that dozens of Democrats would join Republicans in opposition?

As the mainstream media celebrated the permanent Democratic majority in the weeks after the 2008 election, did any of you think that in March 2010 we would be talking about the Democratic majority being in danger?

On January 20, 2009, when Obama took office, and then again in April when Arlen Specter jumped ship, did any one of you think we could hold off Obamacare beyond July?

In August and September, did you think we would make it to the end of the year, and then in early January 2010, did any of you (other than me) think Scott Brown could win and we could prevent a Democratic super-majority?

Your hard work has paid off, even if the end result was not what we wanted. But trust me, without you it would have been much, much worse.

For over a year Obama has not been able to push through other destructive aspects of his agenda, and the clock is running out before the mid-term elections.

The hard work must continue through the November elections because Democrats know they have just a few more months.

So shake off the gloom, get your asses in gear, get over it, and get to work continuing to fight the worst government policies "since the Great Depression."

We have no other choice.

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David Frum knows who is to blame for what appears to be an Obamacare victory: Conservatives who refused to negotiate with Democrats even though Frum admits he has no idea if such negotiations would have resulted in a better bill.

I do know. The bill which appears likely to pass in a few hours is bad, but it is the least bad bill obtainable given the Congressional results of the November 2008 election.

Only through voter resistance in Virginia, New Jersey and particularly Massachusetts, through hundreds of town halls, through vigorous exposure of the Democrats' plans for single payer, through countless phone calls and e-mails, and through legislative vigilance were numerous even more damaging provisions stripped out.

If we had followed Frum's strategy, we would be even worse off, and we would own the monstrosity known as Obamacare.

Frum may want to own this disaster, but I don't.

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The housing bubble peaked in 2005. The bubble reflected a fiscal lack of reality built upon the greater fool theory, that there always would be another buyer foolish enough to pay more.

Anyone who has read this blog before knows that since last summer I have focused on the mandate as the core evil in the various incarnations of the Democratic restructuring of the health care system.

So much else that is wrong in the current bill set for vote today stems from the mandate, including the use of the IRS as enforcement agent and the sharing with the IRS of the details of our health care coverage.

More important than the details of this bill, the mandate destroys one of the last bastions of individual autonomy in this society.

Randy Barnett, a law professor at Georgetown, summarizes the problem today in The Washington Post:

But the individual mandate extends the commerce clause's power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying "cash for clunkers" is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.

If you choose to drive a car, then maybe you can be made to buy insurance against the possibility of inflicting harm on others. But making you buy insurance merely because you are alive is a claim of power from which many Americans instinctively shrink.

It truly amazes me that the left-wing of the Democratic Party, which foams at the mouth at the thought that the NSA might intercept a phone call from someone in the U.S. to a known al-Qaeda operative in Pakistan, is so willing to hand over to the government the power to control the most personal aspect of our lives.

What if Barack Obama were not President, and Democrats did not control Congress. Would liberals be so willing to give the federal government this sweeping power?

The answer to that question is so plainly obvious that it should give pause even to those so infected with Obamamania that they have lost the ability to reason.

Liberals shouldn't wish too hard for the mandate, because they just may get it. Freedom, once relinquished, is very hard to get back.

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On March 14, 2010, Marine Corporal Jonathan Daniel Porto was killed in Afghanistan.

Every loss of one of our soldiers is tragic, but this tragedy has hit home because Cpl. Porto's wife has posted about it at her blog, A Little Pink in a World of Camo.

Her post, I Will Always Be A Marine Wife, is a must read.

Cpl. Porto is survived not only by his loving wife, but by his infant daughter.

I have not been able to stop thinking of them since I first read the post, and never will.

A trust fund has been established for their daughter, Ariana:

Aberdeen Proving Ground Federal Credit Union
ATTN: Collean McKinney for the account of Ariana Ralyn Porto
P.O. Box 1176, Aberdeen, MD 21001

all checks should be made payable to Ariana Ralyn Porto

The funeral in St. Petersburg, Florida is on March 23, 2010, the details are here.

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Iran is killing American and coalition soldiers in Afghanistan.

And not because Israel issued a building permit for more homes in an already Jewish neighborhood of Jerusalem.

As reported by the Times of London, Iranians train Taliban to use roadside bombs:

TALIBAN commanders have revealed that hundreds of insurgents have been trained in Iran to kill Nato forces in Afghanistan.

The commanders said they had learnt to mount complex ambushes and lay improvised explosive devices (IEDs), which have been responsible for most of the deaths of British troops in Helmand province.

The accounts of two commanders, in interviews with The Sunday Times, are the first descriptions of training of the Taliban in Iran.

According to the commanders, Iranian officials paid them to attend three-month courses during the winter....

Shi’ite Iran had long opposed the Sunni-dominated Taliban. The reason for the change was summarised by one Taliban commander who said of the Iranians: “Our religions and our histories are different but our target is the same. We both want to kill Americans.”

While Obama sends Hillary Clinton to launch into a verbal tirade against our close ally Israel, the Obama administration continues to ignore that Iran is at war with us. Whether we want to admit it or not.

Update: Obama today renewed his offer of "dialogue" with the Iranian regime as part of a taped holiday greeting in which Obama said:

"We are familiar with your grievances from the past - we have our own grievances as well, but we are prepared to move forward. We know what you're against; now tell us what you're for."

I will save the President the wait and the wonder. They are "for" destroying Israel, driving us from the Middle East (even after they destroy Israel) and all Muslim lands, destroying any government which supports us, and for the expansion of their hegemony over the greater Persian Gulf region. Got it?

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I realize that the truth behind Obamacare's numbers really doesn't matter to Democrats, and anyone reading this probably is part of my choir, but I'll continue my almost year-long preaching anyway.

Barack Obama pitches the Senate health care bill as the greatest deficit reduction plan in decades. Democratic Congressman parrot those words in announcing their support for the bill. Neither Obama nor the Democratic Congressmen are so stupid as to believe their own words.

The numbers are phony, and they know it. Obamacare is the equivalent of a Three Card Monte game, and the Democrats have turned the CBO into the witting dealer:

Democrats have so thoroughly gamed the budget process and the Congressional Budget Office’s scoring rules that the official cost estimates of the Obama health plan reveal but a sliver of the legislation’s full cost. The Obama plan would vastly increase the size and scope of the federal government, and increase our already record federal deficit.

To hear Democrats tell it, the CBO projects the legislation would cost a mere $940 billion over the next 10 years. The CBO said no such thing: that figure pertains only to provisions aimed at expanding health insurance. Other spending provisions bring the cost to $1.2 trillion.

Then there’s the additional $208 billion that Democrats plan to spend on physicians who participate in Medicare. Democrats moved that into a separate bill to reduce the apparent cost of the main health care bill. Including that spending in the estimate completely wipes out the Obama plan’s professed $138 billion of deficit reduction. After correcting for that gimmick (and accounting for how the two measures would interact), the CBO estimates really indicate that the Obama plan would increase federal deficits by $59 billion over the next 10 years.

Even worse, Democrats hid another $1.5 trillion by preventing the CBO from scoring the legislation’s hidden taxes. At present, when Congress takes money from workers and gives it to private insurers, the CBO counts that as a tax. The Obama plan’s "individual mandate” would force workers to give money directly to private insurers, which the president’s economic advisers admit is also a tax. If history is any guide, those hidden taxes would cost roughly $1.5 trillion – but you won’t find any such estimate in the CBO’s score.

Read on. It gets worse.

Years from now, when the devastating effects of this delusion are felt, were will you be able to say you stood?

I'll always be able to say that I stood for fiscal sanity, one of the voices screaming out against the mass delusion and deception.

Unlike the 216 Democrats in the House of Representatives.

Update 3-21-2010: From an op-ed in the NY Times by the former Director of the CBO:

In reality, if you strip out all the gimmicks and budgetary games and rework the calculus, a wholly different picture emerges: The health care reform legislation would raise, not lower, federal deficits, by $562 billion.

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"Deem and Pass" is dead. There will be an up or down vote on the Senate bill in the House.

But not until the House passes amendments to the Senate bill before it passes the Senate bill:

House leaders have decided to take a separate vote on the Senate health-care bill, rejecting an earlier, much-criticized strategy that would have permitted them to "deem" the unpopular measure passed without an explicit vote.

Rep. Chris Van Hollen (D-Md.) said Saturday that the House would take three votes Sunday: first, on a resolution that will set the terms of debate; second, on a package of amendments to the Senate bill that have been demanded by House members; and third, on the Senate bill itself.

Van Hollen, who has been working on the issue with House Speaker Nancy Pelosi (D-Calif.), said House leaders concluded that that order -- approving the amendments before approving the Senate bill -- makes clear that the House intends to modify the Senate bill and not approve the Senate bill itself.

The House is getting the Senate bill, because the amendments will be the subject of trench warfare in the Senate under the reconciliation process.

Obama will sign the Senate bill, then move on to other things.

This is and always has been word games.

Any House member who votes for the Senate bill will have to live with the consequences of forcing the country to live with the Senate bill.

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