Supreme Court Rules EPA Must Obey the Law

It should be obvious that the EPA must obey the law.  However, the EPA and every other regulatory agency has long adopted the principle that they can exercise whatever flights of fantasy they wish in interpreting the laws passed by Congress that the agency has been empowered to enforce.   The EPA has declared that carbon dioxide is a pollutant under the Clean Air Act and claimed that that gave it the power to control its emissions from power plants. Carbon dioxide was certainly not considered a pollutant when the Clean Air Act was passed into law.  It was declared a pollutant by the EPA under the Obama administration under the claim that it caused catastrophic man-made global warming.  That declaration of carbon dioxide as a pollutant had particularly threatening effects upon existing coal-fired power plants.  The Supreme Court put a temporary hold on the Obama EPA rules for carbon dioxide emissions from power plants.  In 2017, the Trump EPA changed those rules to make them more lenient, but the U.S. Court of Appeals for the District of Columbia decided the Trump EPA rules were invalid.  This caused West Virginia and 18 other states to appeal that ruling to the Supreme Court.

If carbon dioxide actually did cause catastrophic man-made global warming, that would still not actually make it a pollutant and it would not really have been addressed by the Clean Air Act.  The EPA is required to provide scientific studies proving that an emitted gas is a pollutant.  The EPA cited no actual science proving that carbon dioxide caused catastrophic man-made global warming.  It did point at the UN IPCC reports, but those reports are only political documents fulfilling the desires of the governments of the world.  They are not scientific analyses, though they mascaraed as such.  The Summary for Policymakers for each report is written by the political representatives of the governments and any failures of the more detailed "science" sections of the report to support the political Summary for Policymakers are corrected as required.  There have been many re-writes of the science sections to make them more supportive of the political ends of the governments.  Nonetheless, the unwarranted assumptions and the holes in the scientific argument for catastrophic man-made global warming are apparent to any careful reader of the "science" sections of the UN IPCC reports.  Over the years, many of the scientists who wrote the original science sections stopped participating in the writing of the IPCC reports because they were furious about how the science sections were rewritten either by the scientists on the take or by purely political hacks.

In a 6 - 3 ruling, written by Chief Justice Roberts, the Supreme Court said that it was implausible that the Congress would have given the EPA the power to control carbon dioxide emissions of power plants without saying so clearly and explicitly in the Clean Air Act.  He also said that such controls have such a strong effect upon our energy service that such a power requires that Congress address it in law explicitly if those controls are entrusted to a government agency.  Indeed, the implication was that any agency making decisions with great magnitude and consequence must have been given that power very explicitly by our elected representatives.

This ruling is of huge importance for American energy infrastructure and the cost and reliability of power for Americans.  It will likely also result in a welcome reduction of regulatory overreach so common for most of our government regulatory agencies.  It will force Congress to make laws addressing many issues for which they might rather not take responsibility.  The rate of new rulings of government agencies far surpass the rate of new laws produced by Congress.  This court ruling will serve as a brake on the rapid growth of government micromanagement of most all aspects of our lives.

I propose we make 30 June a national holiday called Freedom from Regulation Day.

Ilya Shapiro on Supreme Court Confirmations

Ilya Shapiro of the Cato Institute testified on 20 July 2021 before the Presidential Commission on the Supreme Court .  He made the following major points:

1. Politics has always been part of the confirmation process.
2. Confirmation fights are now driven by judicial philosophy.
3. Modern confirmations are different because the political culture is different.
4. Hearings have become kabuki theater.
5. Every nomination can have a big impact.
6. The hardest confirmations are when there's a potential for a big shift.
7. The Court rules on so many controversies that political battles are unavoidable.

He concluded:

The ever‐​expanding size and scope of the federal government has increased the number and complexity of issues brought under Washington’s control, while the collection of those new federal powers into the administrative state has transferred ultimate decision‐​making authority to the courts. The imbalance between the executive branch and Congress has made the Supreme Court the decider both of controversial social issues and complex policy disputes.

So should we reform the confirmation process? I’ve come to the conclusion that we should get rid of hearings altogether, that they’ve served their purpose but now inflict greater cost than any informational benefit. With instantly searchable records that nominees now have, is there any need to subject them, and the country, to an inquisition? Or maybe senators could hold hearings in closed session.

In the end, all “reform” discussion boils down to re‐​arranging the deck chairs on the Titanic. And this Titanic is not the appointment process, but the ship of state. The fundamental problem is the politicization not of the process but of the product. The judicial debates we’ve seen the last few decades were never really about the nominees themselves. They’re about the Court’s direction.

The reason we have these heated battles is that the federal government is making too many decisions for such a large, diverse, and pluralistic country. Let Congress decide truly national issues like defense or (actually) interstate (actual) commerce, but let states and localities make most of the decisions that affect our daily lives. Let Texas be Texas and California be California. That’s the only way we’re going to defuse tensions in Washington, whether in the halls of Congress or in the marble palace of the highest court in the land.

My Comments: 

Basically, the federal government is too damned big and presumptuously and injudiciously has taken on far too many powers, some of which should have been left at the state or local government levels.  People who live in different parts of the country commonly have different interests and values.  The many federal powers often conflict with these differing interests and values.  The federal legislative branch has defaulted on making those constitutional decisions that were assigned to it, allowing the executive branch to grow into a behemoth administrative, regulatory state issuing many controversial edicts, often bafflingly formulated.  As a result of the burgeoning administrative state, the Supreme Court has had make many more decisions regarding both "controversial social issues and complex policy disputes."  Ignoring the wisdom of the Constitution sure has disastrous consequences!

You have done good work here Ilya Shapiro.

Supreme Court Justice Clarence Thomas is our most stalwart defender of the Constitution

Today is the 29th anniversary of the day our greatest Justice of the Supreme Court, Clarence Thomas, took his seat on the highest judicial court in the great United States of America.  For all his faults, President George H. W. Bush did do one very great service to our country -- he nominated and strongly supported Clarence Thomas to be a Justice on the Supreme Court despite the vicious attacks upon him during his confirmation hearings.

Justice Clarence Thomas has been a tireless and ruthlessly criticized originalist interpreter of the Constitution and of our laws.  He has written 190 opinions, which is far more than any of the other justices have written.  His opinions have had a strong influence on the conservative side of the Supreme Court.  Justice Thomas has been more ready than any other Justice to review prior opinions he believes were wrongly decided.  He is a man with a dedication to independent thinking, which makes him a spear in the side of those Democrats who insist a man is not Black unless he agrees with them.  Personally, I view Justice Clarence Thomas as an unusually rational man who has earned my highest respect and gratitude for his profound service to the rights of the individual, to the rule of law, and to justice, all of which are well served by our Constitution, of which he is the foremost defender.  Justice Clarence Thomas is a genuine hero.

If you want to learn more, read this article:

For 29 Years, Justice Clarence Thomas Has Been the North Star for Originalism on the Supreme Court by Mark Paoletta

Biden Flies Across America to Rally with Ten People Causing Climate Catastrophe

For a man who tells us that the Earth and Mankind face an existential crisis due to the use of fossil fuels, Joe Biden does not hesitate to fly across the United States to give a "rally" for ten followers.  Our energy future is to be put on a starvation diet, while Joe Biden spews carbon dioxide into the atmosphere.

Is this just his megalomania, consistent with his belief that the American People do not deserve to know whether he will pack the Supreme Court?  Or does this mean Joe understands that the Catastrophic Man-Made Global Warming theory is really just a scam for the Socialist Democratic Party to gain more power for the government, which is about to be "I am the Democratic Party" Joe Biden?

Because if Joe Biden is the Democratic Party, then rest assured that Joe Biden, if elected President, will be the Government.  There will be no more need for sharing power with the Supreme Court and the Congress then there is a need for Joe Biden to share power with multiple leaders, factions, and individuals in the Democratic Party.

You Need to Elect Me to Find Out What I Will Do as President

There is a most interesting parallel between the presidential candidacy of Joe Biden and the passage of the infamous ObamaCare bill.  As Nancy Pelosi so famously said about the ObamaCare bill: “We have to pass the bill so that you can find out what is in it.”

The man who claims to be the Democratic Party cannot tell us whether he wants to pack the Supreme Court or not.  He would not answer the question in the first debate with Trump.  He will not tell us whether he will encourage the Democrats to end the filibuster in the Senate so a simple majority can dictate any law it wants to the American people. 

This is a critical issue.  The Senate filibuster has long required that 60% of the Senators had to agree to create a new law, if 40% of the Senators were adamantly opposed to the bill.  For those who lust for power over the people, this has been an irritating limit on their power.  Obama has said the filibuster limit on government power has to be eliminated.  Senator Coons of Delaware wants the filibuster rule changed too.  The Senate Minority Leader Chuck Schumer will only say that if the Democrats get a majority in the Senate, then anything they want is on the table.  On this issue, AOC is at Schumer's side.

Just as many Democrats want to pack the Supreme Court, they also want to tip the scales among the states more in their favor by making the District of Columbia with its almost completely power-hungry government feed trough-eaters a state.  They also want to give the extreme welfare-dependent Puerto Ricans the federal vote that comes with statehood.  The more voters dependent upon a high-spending government for their very existence, the better for those of our betters who want to rule the unwashed, ignorant Deplorables.

Either Joe Biden wants to be a dictator who is not accountable to the American people as his claim of being the Democratic Party states and his refusal to answer basic questions about his use of power as President implies, or he is pawn of the extreme socialist wing of the Democratic Party trying to hide his role with a pretense of leadership over that party.  No sane person could want such a person to rule over them.

The Institute for Justice Wins an Important Case Against Excessive Fines at the Supreme Court

As a supporter and contributor to the Institute for Justice, I received the e-mail I am copying below today.  This is another of many good reasons to support the Institute for Justice, which also acts to protect us from improper eminent domain seizures, some ridiculous water protection EPA regulatory activities, licensing requirements that are really intended to favor those who already have licenses to practice their profession, and very importantly to allow us more school choice.

In a unanimous 9–0 decision released this morning, the U.S. Supreme Court sided with IJ and Tyson Timbs and ruled that the Eighth Amendment’s protection against excessive fines applies to every level of government. Writing for the majority, Justice Ginsburg states that “[p]rotection against excessive fines has been a constant shield throughout Anglo-American history for good reason: Such fines undermine other liberties. … They can also be employed, not in service of penal purposes, but as a source of revenue.”

IJ brought this vital constitutional question before the Court last November in the context of civil forfeiture, which perfectly illustrates the majority opinion’s point. In allowing state and local governments to seize and keep cash, cars, homes, and other property—often without ever convicting owners of any wrongdoing—forfeiture laws give law enforcement a powerful incentive to police for profit.

This decision will provide every single American, including those who fall victim to forfeiture abuse, with robust constitutional protection against excessive fines imposed by state and local governments. Moreover, today’s opinion gives IJ ammunition to take on other abusive fines and fees schemes throughout the nation. We also plan on making Timbs the first in a series of cases the Court takes on to fundamentally reassess the constitutionality of civil forfeiture laws.

Thank you for making these historic accomplishments for liberty possible.

Scott

Scott G. Bullock

President and General Counsel

Institute for Justice

The Many Rights of the Individual

Two hundred and forty two years ago, the Second Continental Congress issued the Declaration of Independence, which states

“We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness – That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.”

The idea that every person has unalienable rights by virtue of the nature of man which are not dependent upon a government granting or recognizing those rights is very frightful to socialists or any other supporters of tyrannical government.  They hate the Declaration of Independence.  They hate the fact that it declares that the only justifiable reason for government is its dedication to the protection and support of every single individual’s rights.  They hate the fact that the Declaration of Independence states clearly that when government acts to deprive men of their equal, individual rights, then it is the right of the People to alter or abolish it.

The Declaration of Independence is not the only essential American governing document that the socialists hate.  Barack Obama declared in a radio interview when he was an Illinois state senator in its state legislature that he did not like the U.S. Constitution because it was a barrier to socialism.  Supreme Court Justice Elena Kagan just wrote in the opinion of the four dissenting justices of the Supreme Court in the Janus case that decided that public employees cannot be forced to pay union dues that the majority were “weaponizing the First Amendment.”  The five justices of the majority had used freedom of speech as the reason for not allowing unions to forcibly collect union dues or even to collect them as a default unless a public employee underwent a process to deny the union the right to collect the money from his paycheck.

Justice Kagan and many others of the left have become very incensed that freedom of speech and freedom of religion have been used to thwart them in their dictation of how Americans can think and act.  They are terribly upset that people associating with one another in business were allowed freedom of speech in the Citizens United v. Federal Election Commission in 2010.  They have been incensed that some businesses have been able to escape infringements of their right to freedom of association by virtue of claiming their freedom of religion, whether in their hiring practices or in their wedding cake baking services.  The present session of the Supreme Court also used freedom of speech to deny the socialist California legislature to require organizations giving advice to pregnant women to tell them about their options to have an abortion.  Hence the socialists or Progressive Elitists are more and more horrified by the individual rights recognized in the First Amendment of the Constitution.

Unfortunately, those who favor a government whose functions violate the individual rights of some, often in the name of providing more security or comfort for others, have long been able to keep the courts from recognizing the many individual rights which were supposed to be protected by the Ninth and Tenth Amendments.  It was recognized when the Bill of Rights was added to the Constitution that individuals had many rights not explicitly dealt with in the earlier amendments of the Bill of Rights.

What are our individual rights, whether recognized by our government are not?

• The right to life, not to be supported, but to be allowed to act to support it ourselves, as we allow others to do so also.  This is a general right to manage our own life and to fully claim self-ownership.
• The right to determine our own actions and to undertake them, provided we do not act to prevent others from determining their own actions and undertaking them with all of us barred from the initiated use of force.
• The right to choose our own values and to pursue those values to try to achieve our own happiness.
• The freedom of conscience, the right to use our own judgment and to act upon it.  Freedom of religion is a subset of this right and is far from all-inclusive.
• The freedom of association, which is also the freedom to choose who we will cooperate with and for what purposes.  This includes our domestic partnerships, our business partnerships, our hiring choices, our freedom of contract, our choice of friends, and those we join in our recreational activities.
• Freedom of speech or communication of our thoughts and ideas in all the forms this may take.  The freedom of assembly is part of this, as it is part of our freedom of association.
• The freedom of privacy, or the freedom not to share those parts of our lives we do not wish to share knowledge of with others.  This includes the right to be secure in our papers, our homes, and such as prescribed in the 4th Amendment.
• The freedom of equal protection of our income and property and the other fruits of our labor and thought.
• The right to own and bear arms so that we might protect our own lives and individual rights.
• The right to fair and just treatment when accused of a crime as prescribed in our 5th , 6th, 7th, and 8th Amendments.

I will not claim this to be an all-inclusive list of our natural rights.  I do not claim that life is so simple that it is always easy to understand how one individual’s exercise of his rights will affect others as they try to exercise their own rights.  But, good societies and good governments -- legitimate governments – will always try very hard to make individual liberty their primary goal and will defer as much as is possible to the individual’s right to make his own value choices and manage his own life.  No legitimate government can take the stance that it is justified in violating the rights of some in the interest of other persons.  Legitimate government cannot violate any person’s rights.  It must respect the equal rights of every citizen and legal resident.

A society with such a legitimate government will be one which minimizes the use of force.  The government should act to prevent all individuals from initiating the use of force.  That government also minimizes its restraints on liberty such that its own use of force is also minimized.  Government which violates individual rights does so by the use of force or its threatened use.  Governments are commonly the worst abusers of the use of force in the nations of the world today.  There are no highly legitimate governments operating at this time.  Some are much less worse than others, but all are massive abusers of the rights of the individual.  The United States federal government violates very many of our rights today and American socialists and Progressive Elitists want it to violate many more of our individual rights.

Many Americans, whether socialists or religious traditionalists, want to use government to prescribe a moral code by which everyone is expected to live.  They are often certain that their moral code is right and that a good society can be achieved if only the government will force everyone to live by their moral code.  The fact that there is often more variation in the moral codes held by the political factions pursuing such moral code prescriptions by law than could possibly be encoded into law rarely dawns on them.  These same people, especially the socialists, are very inclined to either use government or extra-governmental force and intimidation to prevent dissenters from their moral ideas from exercising their freedom of speech, press, and assembly.  According to the socialists and sometimes those who speak for God, if you have morally wrong ideas, you forfeit your freedom of speech, press, and assembly.

No freedom is a freedom at all if one will not allow those you think are wrong from exercising their freedom.  There is no freedom of speech if a minority or a single individual is not allowed to state their own ideas.  There is no freedom of association if one is not allowed to discriminate in the choosing of those one wishes to associate with, even if that discrimination may be what many may call bigotry.

The Christian who refuses to associate with gay people is wrong in my opinion, but he is acting fully within his rights.  To make him bake a cake for a gay wedding may very well be an infringement upon his freedom of conscience.

The gay organizations that want to force non-discrimination against gay people outside of the government itself are very wrong in doing so.  They should be as determined to protect their own freedom of association and conscience as anyone else should be.  Imagine a law that requires every gay bar to bring in heterosexual people until they represent their proportion in the population at large among their customers each night when the federal inspectors come around to make a count at the bar.

Many of the religious conservatives were very unhappy about the Supreme Court ruling allowing gay marriages.  In fact, this should have been a very obvious requirement respecting freedom of association.  Unfortunately, our government does not actually recognize the freedom of association.  It also very much limits the freedom of contract in general.  In reality, people should have as much freedom in forming their domestic partnerships under contract as they would have in forming a business partnership.  If three men and three women wanted to form a domestic partnership, that is their right as much as it would be the right of one woman and one man.  The same is true for one woman and two men or for two men and one woman or for three men or for three women.  The government has no business interfering with such an exercise in freedom of association and freedom of contract.  What such domestic partnerships might aim to accomplish and their sexual relationships are not government business, except insofar as the adults entering into the contract choose to make those matters a part of their lawful domestic partnership contract.

A much more harmonious society results when government is not being extensively used as a tool to prevent individuals from exercising their broad and many individual rights.  There are many claims that we live in an very uncivil society today.  Well, what do you expect when we have to fight over the control of a government that is constantly willing and wanting to violate our rights.  When we have a government that loves to take more from the rich and redistribute it to the many more voters who are not as rich, do the rich not have a right to believe they are threatened by that government?  If the rich use their money and connections to manipulate the regulatory state so that it is much harder for small, upstart companies to compete with their larger companies, is it not reasonable that the small businessmen will be very upset?  If the federal government owns half the land in a state and it controls the use of that land so that the environmentalists on the left and right coasts are happy, is it not to be expected that many in the state where that land is not of use to them are going to be unhappy?  If you are a coal miner, a river barge operator, a store owner in a coal town, or a dock worker in Norfolk, VA, is it not reasonable that you will be very unhappy when the federal government decides that a pregnant woman eating only fish from a river downwind from a coal-fired power plant might according to very imaginative argument and highly cherry-picked studies of islanders who only eat seafood develop some problem due to mercury released from coal combustion so that coal-fired power plants are being shutdown?  Or you want to build an office building, but you have to wait 5 years before starting as you work through endless environmental studies which keep requiring you to spend more and more on the building itself, not to mention the lawyers fees.

Then there is the shear weight of the taxes.  You are young and you do not expect Social Security to be around in 40 years when you might retire, but you are paying into it out of every paycheck, instead of putting that money into your own retirement investment fund.  Medicare costs will exceed its revenues in 2026 according to the ever-changing projections, so if that program is still going to be around, you will have to pay higher Medicare taxes soon.  Meanwhile, you may still be struggling to pay off the money you borrowed to go to college.  Thanks to all of that loan money available, the colleges built themselves up like spas for the rich, but the education you received was no better and maybe worse than the education people received 30 years earlier, but you paid much more for it.

Perhaps you are struggling to start a new business and the paperwork required by the governments and by your business customers is overwhelming, thanks to big government.  Meanwhile, you need to buy equipment so you can expand, but the county personal property tax penalizes you for having that equipment, making it harder for you to hire more people.  The more people you hire the more the governments expect you to act as an unpaid tax collector.  If you do business across state lines, you now have to worry about collecting sales taxes for each and every one of many thousands of taxing authorities even though you have no presence in their areas and no vote to determine the taxes or the politicians who decide to levy them.  Imagine the deluge of paperwork now coming your way.

When the governments do too much and forget the principle that their legitimate function is simply to protect everyone’s equal individual rights, then it is pitting the people against one another.  Good people are simply trying to protect themselves from the hurt that the government can do to them.  Immoral people are very happy to try to wrest control of government so they can take advantage of most of the people.  If you think there are not endless numbers of schemes or conspiracies to do just that in Washington, you are very naive indeed.  The evil-doers are some foundations, environmental groups, people who want welfare, labor unions, educators, scientists, professions that want restrictive licenses, and many businesses, not to mention many politicians.

It is absolute pie in the sky nonsense to think government should hurt some and violate the rights of some in order to help some greater number or the most needy.  Government will start with some plausible such proposal that almost everyone will agree with.  After it has established numerous such programs, the people will no longer have the time or will to think about them.  The government arguments for the next set of programs can be much less plausible now.  Soon it is a free-for-all.  Soon one has what we have now, government for special interests.  The people are bewildered and no longer in effective control.  Some simply trust to the authorities, but most Americans are now very jaded.  But, this is exactly what should have been expected when we allowed government to disregard a strict adherence to its legitimate role as the protector of every individual’s many and broad rights.  When we give this up as a critical and essential principle, we give up all hope for a just, fair, and harmonious society.

Judge Neil Gorsuch Says the Declaration of Independence Is Not Foundational Law

Under questioning by Ben Sasse, Republican Senator from Nebraska, Judge Neil Gorsuch said that the Constitution is the foundational law.  The Declaration of Independence is not, though it is informative of the background of the Constitution and should not be lightly discarded.  Unfortunately, Judge Gorsuch did not discuss the fact that the Declaration of Independence is the primary statement of the philosophy behind the Constitution.  He neglected to say that the Declaration of Independence is the American document that defines the legitimate purpose of government -- the protection of the rights of the individual.

It is the Declaration of Independence that makes it clear that sovereignty resides in the individual, not in government.  Government exists to serve the sovereign individual, the holder of rights.  The individual and his rights exist whether government does or not.  Government does not define individual rights.  It is the nature of man and his need to survive and flourish in life that define individual rights.  An understanding of this is absolutely necessary to make it possible for government to fulfill its legitimate purpose in protecting everyone's individual rights.

The Bill of Rights enumerated some individual rights.  Yet that same document, in the 9th Amendment, made it crystal clear that the enumeration of individual rights was incomplete and that the federal government was not "to deny or disparage the other rights retained by the people." Unfortunately, the federal courts have attributed almost no protections to individual rights under this 9th Amendment, having virtually ignored the broad scope of individual rights acknowledged in the Declaration of Independence as those of life, liberty, and the pursuit of happiness.

The 14th Amendment also recognizes the broad individual rights of citizens: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Absent the context of preexisting and preeminent individual rights, the protections of those rights by the government are bound to be haphazard at best.  More likely, the government itself will become the greatest threat to individual rights.  The fact that the Declaration of Independence is not considered a foundational document in the law drastically undermines our understanding of the purpose of government, its proper limits, and the effectiveness of the Constitution to fulfill its contract with the people to provide "a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, ..."

It is very disturbing when politicians and judges prove themselves to be rudderless before their essential and only task of protecting individual rights.  There is no way that a knowledge of these individual rights is or can be spelled out by a few short documents.  The Constitution is itself a given document whose meaning is the Law of the Land.  It is not a changing or living document and it must be interpreted in accordance with its original meaning.  When and if one cannot do that, it should be amended.

What is living and evolving is our understanding of individual rights.  The Constitution literally makes it clear that we are to see to it that the government protects everyone's equal individual rights as these rights are understood in terms of man's nature and the reality in which he lives.  The use of this understanding of man's rights is not a matter of changing the meaning of the Constitution.  Its meaning was always to provide a very limited government whose purpose was the protection of individual rights.  There is no other interpretation of the Constitution which is self-consistent, rational, and legitimate.

Freedom of speech has evolved since the time of the Constitution's adoption as the Law of the Land. It still means that one has the right to say what one wants to those within hearing range, but it also now means that one has the freedom to buy a radio or a television station and say what one wants through that medium, or that one can say what one wants in a video posted to You Tube.  Similarly, property and labor rights have evolved in many ways to include new forms of contracts and new forms of intellectual property.  It has come to be recognized that domestic partnership contracts have to equally recognize the partnerships of two people of the same sex, as well as those of two people of the opposite sex.  Not to do so is a violation of the principle of the equal protection of individual rights necessary to the right to pursue one's happiness.  One can only hope that our broad right to freedom of association will one day be more recognized than it is now.  As these changes have occurred and will continue to occur in our real lives, the 9th and 14th Amendments should be constant as sources of the justification for protecting these individual rights. No change in the Constitution is needed to protect individual rights, despite their evolving nature.

To be clear:  I am not a believer in a living Constitution.  I believe that it is our understanding of individual rights that is changing.  To some degree, those individual rights are themselves evolving as the conditions of man's existence in reality change.  Most of that change is the result of man using his rational faculty to improve and control the world in which he lives.  We need judges throughout our judicial system who understand that the Constitution itself should be interpreted literally and always in such a manner as to maximize the protection of individual rights.  These same judges should be open to understanding our individual rights and prepared to expand their range.  It is not the Constitution which is the primary basis for rational law.  The primary basis is the protection of individual rights.  The Constitution is an important and critical tool to limit the powers of government and to direct its actions toward the equal protection of every citizen's many and broad individual rights.  This is the critical context for all valid constitutional law -- indeed for any valid law.

It is sadly the case that Judge Neil Gorsuch seems to defer too much to any existing law and any prior interpretation of the law whether or not they violate these principles of legitimate government.  It appears that Justice Clarence Thomas will remain the best of the Supreme Court justices.

One Person, One Vote?

The Supreme Court just heard a case on Tuesday, Evenwel v. Abbott, over whether state legislative districts must equalize the number of voters or the number of people.  The particular state in this case is Texas, where districts are apportioned by number of people and where the number of voters per district then differs greatly in some cases.

One person, one vote sounds nice -- until you give it some thought.  Of course children are persons, but we exclude them from voting.  Non-citizens are also not supposed to vote, though many do in some districts, especially those controlled by the Democratic Party.  Many people though eligible to become voters do not register to vote.  Many people who are registered to vote skip many or some elections.  There simply is no sense in which one person gets one vote and one share of representation.  There is no feasible way to achieve any such outcome in the future.

The Constitution originally handled the problem this way:

Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding the whole Number of free Persons, including those bound to Service for a Term of Years, and Excluding Indians not taxed, three fifths of all other Persons.

Consequently, districts for the House of Representatives were equalized for the total number of people, excluding untaxed Indians and two-fifths of slaves.  The free Persons included non-citizens.  The idea at the time was that those men eligible to vote would represent all men with insufficient property to vote, children, women, non-citizens, those bound to service for a term of years, and all slaves.

The 14th Amendment changed the apportionment for the House Districts by only excluding Indians not taxed.  It went on to punish states that denied the right to vote to male citizens of 21 years of age or older by reducing the House representation in proportion to their numbers in ratio to the total number of male citizens 21 years of age and older.  The idea was still clearly that male citizens of 21 years or older would represent all women and all non-citizens.

But how should the House Districts properly be set up?  By extension, how should state legislative districts be set up?  Is it reasonable to assume that those who vote are trying and able to represent the good of those who cannot or will not vote when they cast their vote?  These are substantive questions.  It is not unreasonable for fairly reasonable people to disagree on the answers.

At the time the 14th Amendment was written, it was considered that House Districts should be apportioned in accordance with the number of voters or eligible voters.  That idea was shot down immediately when Representative James Blaine, Republican of Maine, examined the census data and found that since the ratio of men to women was much higher in Western states than in the Eastern states, the Eastern states would lose massive representation if it were based on the number of voters or eligible voters.  Women could not vote, but they were valuable for inflating the numbers of persons for representation, much as slaves had been in the South in the past.

It is now easy for all citizens of age to vote.  Despite this, in many areas very low fractions of the citizens chose to vote.  They are either not sufficiently interested or they are so infused with a sense of futility that they see no point in voting.  Should uninterested people or those so infused with a sense of doom and futility be given representation that they will not use? 

In most cases, such uninterested or futility-bound voters especially occupy highly Democrat districts.  So many Progressive Elitist Democrats believe such non-participating voters or potential voters should be represented because they, the Progressive Elitists, will cast their votes in the interest of the apathetic or doomed-in-futility persons.  Yet these same Progressive Elitists have long claimed to be doing this, especially to minimize economic inequality.  Nonetheless, the Congressional Districts with the worst economic inequality are almost exclusively Democratic and have been for decades.  Clearly, the Progressive Elitist voters, who do vote in high percentages, either do not actually vote to reduce economic inequality or they do so with a complete misunderstanding of the consequences of their votes.  They are clearly horrible at representing the interests of the less educated and less inclined to vote people in their districts.

In general, people who vote either vote their own interest or they vote for the interests of others without actually understanding their interests.  Let us be realists and recognize the facts and human nature.  People barely able to motivate themselves to vote rarely have any understanding of the legitimate role of government, the important political issues of the time, the principles of the candidates, and the manner in which new laws and regulations will affect our futures.  In the era of
Big Government these issues are often much more complex than they were in the past in America.

We should also note that it is clear that people are not good at representing the interests of children.  We see this in the miserable public education system we have, in the huge national debt, in the terrible future liabilities of Social Security and Medicare, and the complete disregard for the effect of compounded economic growth rates on the standard of living of Americans 30 or 40 years from now.  Few voters weigh the future enough to look to future outcomes.  Consequently, they are nearly worthless as representatives of the interests of today's children.

House districts, both federal and state, should simply be apportioned on the basis of the number of voters in the last several elections, assuming they do not exceed the number of eligible voters as they do in some Democrat districts.  This apportions representation according to the numbers of citizens of age to vote who actually have an interest in government.  Yes, many of them will not understand the issues and the consequences of their votes either, but this is the one form in which One Person, One Vote is actually achievable in the form of One Voter, One Vote.

Adding to the weight on political outcomes of those districts with higher voter turn-out is likely to raise the quality of the People's Voice about as high as one can accomplish by any means except an improved education system or other educational efforts.  If the reward in political outcomes is greater for those who already care enough to vote, perhaps they will make a greater effort in the future to think about their votes.  These more thoughtful voters then may even realize a bit greater responsibility not to do harm to others, including those others who do not care to vote.  But realistically, one will be giving a greater voting weight to those who are voting for the interests of those they know best, themselves and perhaps their immediate family and friends.  That is not a bad thing.  Most great wrongs are done when people vote or act for others they do not even know, or when they pretend to do so.

How might one determine the number of voters for these district apportionment purposes?  How about the last four elections in the previous decade with re-apportionment occurring once a decade?  It would be nice if one could just make this the last four elections, but the re-districting effort and battles would be too much.  As for why four elections, the fluctuations in voter turn-out are great, especially the differences between Presidential elections and those when voting on the President does not occur.  The last four elections will include two presidential and two non-presidential elections.  It will include elections when no vote was up in the state for Senator in Congress.  It is a good number to average out, though it may slightly lag overall population shifts.  I would gladly live with that population shift lag for the many benefits of One Voter, One Vote, One Share of Representation.

As for state legislative districts, a variety of formulas are fairly reasonable and determining what formula to use should be left up to the states.  Only very unreasonable state decisions should be corrected by the Supreme Court.  Among the unreasonable apportionments would be those that count non-citizens.  Perhaps counting citizen children should also be considered unreasonable, though I am less adamant about this than about the non-citizen count.

Which brings up the need to also tackle the problem of ineligible voters casting ballots as another aspect of the voter representation problem.

Ambiguity, Context, Legislative Deference, and State Emasculation in King v. Burwell ObamaCare Decision

This is my belated rational analysis of the Supreme Court's 6-3 decision to approve federal tax subsidies for health insurance exchanges mandated under ObamaCare whether they were established by the state or not in the King v. Burwell case.  I am not a lawyer.  I am simply a man who regards the protection of individual rights as the sole legitimate role of government, as stated wonderfully in the Declaration of Independence.  A very limited government consistent with that goal of legitimate government was mandated by the People in the Constitution of the United States of America.

The first Supreme Court decision on the infamously falsely named Patient Protection and Affordable Care Act was NFIB v. Sebelius.  The NFIB challenged the use of a fine or penalty fee to force individuals to buy only such particular health insurance plans as were approved by the federal government.  Congress had insisted at the time of passage of this bill that the individual penalty fee was not a tax.  The majority 5-4 decision that upheld the constitutionality of the individual mandate was based on the bizarre claim that Congress had the power to tax.  Since the penalty fee was really a tax and was not a penalty fee according to the court decision, the individual mandate was within the powers of Congress to impose.

To this day, the Supreme Court designated tax is still called a penalty fee, a fine, and a shared responsibility payment by the federal government, rather than the tax that was falsely ruled constitutional by dropping the context of the taxing power in the Constitution. The power to tax was exlusively for use in exercising the very limited and strictly enumerated powers that promptly follow the power to tax in the structure of the text of the Constitution.  If the federal government were allowed to do anything it wants under the power to tax, there was no need to enumerate its limited powers to provide for the national defense, handle foreign affairs, establish a federal court system and a postal system, establish post roads, bankruptcy law, patent law, naturalization law, and uniform weights and measures.  Note the lack of any authority to establish health care or health insurance laws.  Now remember this lack of context in the case of the Supreme Law of the Land as we discuss this King v. Burwell decision which hangs so heavily on what it claims is context.

Basically, the decision concludes that ObamaCare "includes more than a few examples of inartful drafting."  Of course those of us who paid attention to the process by which it "became law" understand that it was slapped together with undue hast, without any attempt to rationally evaluate its effects and self-consistency, and without being read by most of those Democrats who voted for it.  In fact, we are not sure that a single voter actually read it.  But, we do know that a number of those who did thought that only those in states that chose to establish an ObamaCare exchange would be eligible for federal subsidies for health insurance plans on those state exchanges.  This was supposed to help convince the state governments to cooperate with the ObamaCare law or get them in trouble with those who would be deprived of the subsidies.

The context of this history was ignored by the Supreme Court in its decision, but its decision starts with the very political and historical assessment that

The Patient Protection and Affordable Care Act grew out of a long history of failed health insurance reform.

Indeed, it goes on to discuss a series of state efforts at reform and concludes that it is necessary for a successful health insurance law to provide that:

1.  It must have guaranteed issue.
2.  It must have a community rating requirement.
3.  It must require an individual mandate or impose a tax on non-compliant individuals.
4.  It must provide subsidies to make the insurance affordable for low income persons.

Deciding what successful health insurance reform is might be a legislative power, if it were even that and it is not, but most certainly is not a power granted to the federal courts.  Nonetheless, this Supreme Court has decided that this is a part of the context which it will apply as a critical element in its argument that ObamaCare is legal.  This is a purely political decision.

The decision claims that there is ambiguity in the oft repeated phrase "an Exchange established by the State under [42 U.S.C. Section 18031]" due to context.  The dissenting opinion disagrees on this.  If the state does not establish an ObamaCare exchange, the Secretary of Health and Human Services is directed to establish "such Exchange."  The word "such" is loaded with the meaning that whether the exchange is established by the state or by the federal government, those exchanges are interchangeable for all purposes of the law.  Now this is a major case of cherry picking a meaning for the word "such" and loading it with massive interpretive import, especially in the context of a bill which "includes more than a few examples of inartful drafting."  That is a form of context-dropping.  The court claims that this is providing context, nonetheless.

There is also a reference that the act provides that tax credits "shall be allowed" for any "applicable taxpayer."  In this case the majority decision chooses to interpret "applicable taxpayer" as one who meets the income requirement but the word applicable does not apply to whether the taxpayer is in a state with an applicable state-established exchange.  Well, who knows what this means?  It is a badly written bill, full of "inartful drafting."

There is also a reference that directs all exchanges to make an effort to inform individuals about the subsidy program.  Politically, this was known to be a part of the effort to bring pressure on states to establish an ObamaCare exchange.  If they did not do so, the federal exchange would broadcast to those who did not get the subsidy what their state had taken from them and put pressure on the state to cooperate with the law to reduce its costs to the federal government by creating and managing the exchange.  It did not work out this way because so many states refused to set up state exchanges that the Obama administration had the IRS rule that subsidies would be available in all states.  This was needed to tamp down the rebellion.

With the claim that there is ambiguity, the court says that the issue is so loaded with "economic and political significance" that Congress could not have intended that the interpretation be provided by the IRS.  So, the Supreme Court concluded that the interpretation should be provided by the Supreme Court with all of its expertise on economic and political issues.  A rational individual would conclude that if this really is ambiguous, then the Supreme Court should defer to Congress and announce that this critical provision in the ObamaCare law is ambiguous and unintelligible.  It should say if Congress wants the federal courts to enforce a health insurance reform law with subsidies, then it is the duty of Congress to eliminate the ambiguity by passing a new law to remove that ambiguity.  It is critical that laws have intelligible meaning.  But no, there is no deference to Congress and the separation of powers, not even in the context of the incredible change in the Congress resulting from the people's fury over the passage of the ObamaCare law.  This court does not want the new representative resulting from democratic choice of the people to have a say in the correction of the faults of the ObamaCare law.  Clearly, the Progressive Elitist view of the Supreme Court is stronger than that of the present Congress, so the decision must stay in the Supreme Court to insure their desired political and economic outcome.

This court ruling has also had the effect of much further reducing the power of state governments.  Their refusal to participate in a federal program which many of them thought correctly was unconstitutional and unworkable was swept aside.  These state governments were not to be allowed to protect their residents from any of the many harms of the rightfully unpopular ObamaCare law.  The Supreme Court ruled that there was to be no opting out of the health insurance reform bill which it had decided was a politically and economically highly desirable reform.

The Supreme Court has once again defied the Constitution, rational law requirements, the democratic expression of the People, and our sovereign individual rights to life, liberty, property, self-ownership, and the pursuit of our happiness.

Federal Judge Rules Suit Against ObamaCare May Proceed

One of the many ways the Obama Regime is violating its Signature Law is by claiming that the IRS can impose penalty taxes on businesses and individuals in the 34 states that did not set up the State Healthcare Insurance Exchanges that the ill-designated Affordable Care Act tried to encourage them to do.  The federal government did not have the power to order the states to set these exchanges up and many Democrats who voted for the law made it clear they would not vote for it if their state was required to set up such an exchange.

The intrepid Competitive Enterprise Institute is assisting in a case, Halbig v. Sebelius, which is challenging the legality of the IRS and Obama Regime attempt to impose mandates on businesses and individuals in those states that refused to go along with this highly unpopular law.  A federal judge ruled on Tuesday, 22 October, that this lawsuit may proceed and he will rule on it by 15 February 2014.

The law itself makes it very clear that in the federal exchanges set up in the non-participating states that businesses cannot be taxed for not providing healthcare insurance such as is mandated by the government in the state-run exchange states.  Individuals cannot be forced to buy health insurance in the same way either.  Subsidies also are not authorized in the law for lower income people under the non-state run health insurance exchanges.  Excluding the exchanges in the 34 states that did not set up the ObamaCare state exchanges is certain to kill ObamaCare in short order.  With the people of 34 states only seeing higher taxes because of ObamaCare and getting no benefits at all, it is not believable that the rebellion against this tyrannical law will not amplify greatly.

Of course, the federal courts may simply rewrite the law as the Supreme Court did in NFIB v. Sibelius when Chief Justice John Roberts so feared opposing Obama that he claimed a broad power to tax for purposes not enumerated in the Constitution was the basis for penalty taxes in the ACA.  He did this despite the many, many Democrat Socialist claims when they created the law and voted for it that it was not a tax.  So, the weak-kneed federal courts may fail to protect our individual rights once again.  But then again, maybe this time the federal court will stand on principle and the letter of the law.  Perhaps the fact that Obama has in so many ways violated the letter of the law is taking a legal toll on the patience of the courts.  Perhaps the fiasco of it implementation and rising anger among the People will give the courts some courage.  We shall see by 15 February 2014.

Thank you Competitive Enterprise Institute and Sam Kazman, its general counsel, and their allies!

The Lawless NRLB and Obama

The U.S. Court of Appeals for the District of Columbia just decided that Obama's three appointments to the National Labor Relations Board on 4 January 2012 were illegal because they were not approved by the Senate which had started a new session on 3 January.  Obama had claimed he was making recess appointments, which the Constitution allows when the Senate is in recess.  Obama claimed the right to determine when the Senate was in recess or not, despite the fact that Congress traditionally declares itself to be in session or recess.

In 2010, the Supreme Court had ruled that the NLRB could not make case rulings or undertake rule-making activities without a quorum of three of its usual five members.  One of the illegally added members, the sole Republican, had resigned long ago because of the very one-sided pro-Labor Union decisions against business owners.  One of these cases was the Boeing ruling in which they were trying to set up a production facility in South Carolina, a Right to Work state.  The NRLB had ruled that Boeing had to do more of that work than it wanted to in Washington, a Union Shop state.  With two of the remaining four NRLB members illegally appointed, hundreds of rulings should be considered to have no authority.  The NRLB Chairman, Mark Gaston Pearce, claims that only the single case actually decided upon by the Appeals Court is tossed out and that all of its other decisions remain in force despite a lack of quorum.  In addition, he claims that the NRLB will continue making rulings and rules with its current members, including those just ruled to have been illegally and unconstitutionally appointed by Obama in direct violation of the 2010 Supreme Court decision.

The initial appointments were a lawless act by Obama.  The determination of the NRLB, with only pro-labor union members, to continue with rulings and rule making without a legal quorum is stunningly lawless.  The fact that Obama has not ordered the NRLB to stop proceeding without a quorum is a renewal of his claim to be above the law.  Note that the claim that a violation of the quorum requirement only overturns one out of hundreds of rulings is absurd.  This means that a lawless federal agency can continue to abuse the People in every case in which the People do not have the money and the time to pursue their own case in the federal courts to at least the Appeals Court level!  It makes a mockery of justice and of individual rights and clearly mocks the idea that government is a servant of the people.

Obama also made a similar "recess appointment" of Richard Cordray as director of the Consumer Financial Protection Board, which was set up by the Dodd-Frank financial reform bill.  That bill was really an attempt to divert public attention from the fact that the 2008 financial crisis was primarily caused by the government.  Obama has just asked to have Cordray appointed again to be director of this CFPB.  Its activities under this illegally appointed director have also been challenged in the courts.

Obama's failure to order the Justice Department to produce the public documents they are required to produce on the Fast and Furious investigation and to require the EPA to produce documents it was required to produce on Lisa Jackson's hidden e-mail activities are other examples of his common lawlessness.  His providing billions of dollars of funding to his campaign contributors who set up flimsy green energy companies, while not providing federal funding to more sound green energy companies is another instance of his lawlessness.  Then what could beat his awarding exemptions from the requirements of ObamaCare to his union friends and to his contributors and those of other top Democrat leaders, when no such exemptions are a part of the law?  He has made similar unauthorized exemptions to the law through the programs of the Department of Education.

Obama is a very shady, lawless man and he likes to gather similar people around himself and put them in positions of power.  American federal government institutions have been rapidly degraded by this man and his regime of outlaws.

Court Thwarts ObamaCare Attack on Religion

A judge, John L. Kane, of the U.S. District Court of Colorado issued an injunction against the rules of the Obama administration that the health care payment plans under ObamaCare must provide for contraceptives.  The Newland family owns the Colorado company Hercules Industries, which manufactures HVAC equipment and materials.  They are a Catholic family and their company has several hundred employees to which they will have to supply Obama administration approved health care payment plans.  They maintain that this violates their religious freedom and is in clear violation of the Religious Freedom Restoration Act.  The Jimmy Carter appointed judge ruled that the Newland family case was sufficiently good that the injunction against enforcement by Obama's administration should be granted until the courts make a ruling in the case.

In the Citizens United v. FEC Supreme Court ruling, the right of individuals in a corporate association to freedom of speech was maintained.  The Obama administration had claimed that freely associated people in commercial activities lost their freedom of speech.  The Obama administration is now saying that people associated in a commercial activity lose their freedom of conscience or religious freedom.  I do not think that claim will hold up any better with the Supreme Court than did their loss of another 1st Amendment right to free speech.

Read more at NetRightDaily.com: http://netrightdaily.com/2012/08/federal-judge-in-colorado-issues-first-injunction-against-hhs-mandate-expect-more-to-come/#ixzz22MfehyLP

To be clear, I have nothing whatsoever against the use of contraceptives.  But people who do should not be forced by government to violate their own moral values.  Even religious ideas that I believe are irrational must not be threatened by government, if we are to maintain freedom of conscience and the freedom to independent thought.

ObamaCare: No Due Process, Unconstitutional Tax

It is said that the 5-4 Supreme Court decision that ObamaCare is constitutional in NFIB v. Sebelius provided that the penalty for not buying the expensive health insurance plan mandated by the government is redesignated a tax, is not entirely bad because by a 7-2 decision the court decided that ObamaCare was unconstitutional under a basis provided by either the Commerce Clause or the Necessary and Proper Clause.  It is now well-established that there are some limits to the powers granted the government by these other clauses of the Constitution, which had been the primary basis for the Obama administration claim that ObamaCare was constitutional.  The law was held to be constitutional as re-written by Chief Justice Roberts.

Nonetheless, the Supreme Court declared a highly unconstitutional law to be constitutional, as it has long had a tendency to do.  It has violated the fundamental American Principle that forms the foundation for the purpose and function of the government which the Constitution mandated as the will of the People.  The Constitution written and signed by the members of the Constitutional Convention in 1787 and which went into effect after 9 states had approved it in 1789, was a reformation of the government of the United States of America.

The United States of American began with the Declaration of Independence, signed 2 July 1776 and announced publicly on 4 July 1776.  The Declaration of Independence had proclaimed that every individual has an equal and inalienable (or sovereign) right to life, liberty, and the pursuit of happiness.  It was understood that these individual rights were not granted by government and that they resided in each individual man by virtue of his nature.  Individual human rights included the right to property.  The most important property each man held was his own body and mind and his labor.  The Declaration of Independence decreed that any government that violated an individual's rights was illegitimate.  Government should have as its purpose and sole function the protection of individual rights.

This American Principle of highly limited government devoted to the protection of the rights of the individual, was the basis for the government mandated by the People in the Constitution for the same United States of America which took effect in 1789.  The continuation of our government in a new form did not result in an abrogation of the Treaty of Paris, signed in 1783, which ended the American Revolutionary War and created a number of agreements which the Great Britain had still not fulfilled in 1789.  President Washington continued to try to hold the British to those requirements of the Treaty of Paris.  We were not a new country in 1789 and we still owed our existence and our birth as a nation to the Declaration of Independence.  While the powers given to the government by the Constitution were thought by many to be so restricted and limited that the government could not pose any threat to individual rights, most Americans worried so much about some future infringements that they demanded the Bill of Rights as a condition of their approving the Constitution.  The People then thought the Constitution with its Bill of Rights was a clear mandate for a government that could not violate our sovereign individual rights.

It was well-understood that government, while needed to protect individual rights, was also very inclined to add to its powers until government became the primary violator of individual rights.  Such is the case in the United States of America today.  The federal courts have neglected the context in making decisions of law generally and constitutional law in particular that is provided by the foundational  American Principle.  Without the repeated and constant guidance of that principle, long strings of court cases were decided and precedent was established which provided government with more and more of the additional powers it desired, but which caused government to become the primary violator of individual rights in the USA today.  Such unguided and out-of-context decisions greatly expanded the powers of government by expanding the scope of the Commerce Clause, the Necessary and Proper Clause, and the power to tax without regard to the effect upon our individual rights.  As a result, Congress was under the impression when it passed ObamaCare that these clauses of the Constitution gave it the power to do almost anything it chose to do.

Precedent is important and helps people to understand the law and its interpretations and to prevent sudden interpretation changes.  This is true only if those precedents were established in a manner consistent with the American Principle, however.  In our case decisions too often have not been consistent.  Any interpretation of the Constitution or of any law deemed to be constitutional, must be consistent with the requirement that legitimate government cannot violate individual rights.  It is the American Principle that makes the United States of America exceptional among nations and which legitimately causes a freedom-loving People to admire what they once had here in the United States of America.


ObamaCare: Due Process Failure

From early in the legislative process to create ObamaCare, the American People have been deprived of due process in this law which will have very drastic effects upon our lives and the exercise of their rights.  I have discussed many of these in the past and the present 5-4 Supreme Court decision has added to the list of due process failures.  The following is a list of many of these due process failures:

• The name of the Patient Protection and Affordable Care Act is a misrepresentation of the act.  It was always clear it would make health care more expensive for almost everyone and that the quality of healthcare would suffer for most people.  The act was a fraud perpetrated upon the People, so they were less likely to bring appropriate pressure upon their elected representatives to oppose its passage and protect their individual rights.
• The principal effect of ObamaCare was to turn ownership of every individual's body and the mental health of their minds to the collective in the most direct and obvious violation of individual rights.  The intent of the law was to force individuals to buy a more expensive and comprehensive insurance policy than most need as an individual so that free-riders could not game the government intrusion into the health care system that already controlled half of that marketplace.  It was also so that a very small fraction of people with pre-existing conditions could get health insurance.  But, neither the plight of a few people with pre-existing conditions nor some free-riders, could justify any constitutional judgment that ObamaCare was an act of legitimate government.  Clearly, most people were going to suffer a real and important loss of their ability to manage their own lives, decide how to protect their health, and were going to suffer a loss of happiness while forced to wait in pain for long periods to see overworked, underpaid, and angry doctors whose medical skills and equipment were going to suffer degradations relative to the free market alternative.
• Each of our elected representatives and the President have an obligation recognized in their oath of office to protect the Constitution.  They are clearly in violation of this oath every time they vote for or sign into law a bill which they have not read.  This is a major violation of due process and should be recognized as such.  The votes of any Senator or Representative who did not read the bill and properly judge whether it was constitutional or not are invalid votes.  This being the case, the bill did not pass either the House or the Senate legitimately and with due process.
• Many additional effects of the law were misrepresented. It was claimed over and over that if one liked one's present health care insurance plan, one could keep it.  The law clearly did not allow this.  It was said over and over that the panels that would decide what medical care would be provided to whom, were not Death Panels, and yet these same panels are declaring that many life-saving operations previously provided to those 70 and over will no longer be offered or provided.  The same will be true of newborn infants.  Life or death will be decided by these panels, but we cannot recognize that function!  Fraud once again was practiced to ease the passage of this law, which barely did so.  Perhaps some Senators and Representatives were fooled by these fallacious claims and would not have voted for the bill had they known.
• Tax bills must originate from the House of Representatives.  This bill is full of new taxes, even prior to the Supreme Court ruling that the penalty is really a tax.  This bill did not originate in the House.  H.R. 3590 was a bill called Service Members Home Ownership Tax Act of 2009 which was passed by the House, whose name and content was completely changed by Senator Harry Reid and turned into the Patient Protection and Affordable Care Act.  This was a transparent violation of the Origination Clause requiring revenue bills to come from the House.  Chief Justice Roberts chose to take no notice of this constitutional violation, though the dissenting opinion did note it.
• ObamaCare is essentially a huge outline of a bill which ceded the responsibility of the Congress to write bills in large part to agencies under the Executive Branch who are writing or have written thousands of pages of rules and regulations to implement ObamaCare which Congress has not reviewed in fulfillment of its constitutional duty.  These Executive Branch agencies and cabinet departments are not constitutional allowed to establish laws.
• Tax laws cannot be reviewed by the Federal Courts until the taxes in them take effect.  This case was reviewed by the Supreme Court and allowed to stand even as that court claimed that the huge penalties of the bill were taxes.  Those taxes are not yet being assessed, so this bill should not have been reviewed under due process at this time.  The fact that the decision was rendered is in direct contradiction of the decision that the penalty is a tax.
• The bill claims the penalties for not buying the government mandated health payment plans are not taxes.  The American people were told by many Senators, Congressmen, and the President that they were not taxes.  Indeed, the purpose of a tax is to raise revenue, while that of a penalty is to compel behavior.  This compelling of behavior was the aim of the ObamaCare bill.  Justice Roberts says the tax is not high enough to force anyone to buy ObamaCare health insurance, so it does not compel behavior, so it is not a penalty.  This is a tortured viewpoint.  Since the majority of the Supreme Court now says they are taxes, even if this bill had been passed by Congress and signed into law under due process, that due process would have been forfeit now.  The Supreme Court is not authorized by the Constitution to create new legislation on its own as it just did.  Laws are made in Congress, which has the first pass on deciding whether a law is constitutional or not.  Then the President has an opportunity to veto a bill if he thinks it is unconstitutional.

ObamaCare is Now an Unconstitutional Tax

Chief Justice Roberts and the four radical leftists on the Supreme Court redesignated the penalty for not buying a particular prescribed government health "insurance" policy at an elevated cost largely dictated by conditions of inclusion set by the government to be a tax.  This tax is a direct tax and has not been apportioned among the states as required by Article I, Section 9 of the Constitution:

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

This means that any direct tax can only be levied upon a state in proportion to its population.  Presumably an income tax would be based on all income in the U.S. and each state would be required to provide a tax in proportion to its state population.  If the federal government decided that tax on income was to be 20%, then the tax to be collect would be (0.2) I, where I is the total national income.  If a particular state has a population which is equal to 2% of the national population, then it has to provide income tax revenue in its state of (0.02)(0.2) I to the federal government.  This makes it constitutionally impossible for the federal government to levy a progressive direct income tax and it means the tax in a given state will not be in the same proportion as income in that state.

The 16th Amendment seems to most Americans today to have created an exception to this injunction against direct taxes for the specific case of income taxes.  This was not so, because at the time this amendment was passed, income was considered to be, and was affirmed as such by the Supreme Court in Eisner v. Macomber in 1918 and in Merchants Loan and Trust v. Smietanka in 1921 to be the profit a corporation made.  In earlier decisions, Pollock v. Farmer's Loan and Trust (1895) and Brushaber v. Union Pacific Rail Road (1916), the Supreme Court had ruled that to be an indirect tax, income had to be separated from its source.  If a corporation was paid rent money for a building it owned, it had to subtract its expenses for renting the building and this established separation from the source of the income.  The tax on the profit from the rental was an indirect tax.

The rulings of the Supreme Court make it clear that a so-called income tax levied upon an individual's salary, wages, tips, commissions, and bonuses are direct taxes and are prohibited by the Constitution.  These direct payments belong to the individual as a matter of right, because his labor is his property by right.  Despite such payments not having been considered to be income in 1913 when the Income Tax Amendment was approved, the Supreme Court has never since these early cases taken up the protection of the individual right to payment for one's labor.  The government now taxes these payments without separation and without subtracting expenses in clear violation of the individual right to one's own labor and its fruits.  One might say the Supreme Court did for the income tax what it has just done for ObamaCare.  It found a limited way for it to be started and then never re-examined those situations it said were unconstitutional.

In a completely specious argument, Chief Justice Roberts claimed the penalty was a tax since it was not levied on most people.  The fraction of the population upon which a tax is levied has nothing at all to do with its being direct or indirect. 

Justice Roberts said that a tax that forced Americans to buy the government prescribed health insurance would be unconstitutional.  He said a penalty high enough to do so would be unconstitutional.  But, he says since the present tax is too low to compel Americans to buy health insurance, it is constitutional.  If this law is not soon repealed, it will fail because too many Americans will pay the tax rather than buy the more expensive health payment plan.  Future Congresses will then raise the tax until individuals are compelled to buy the health payment plan and then by Roberts' decision the law will be unconstitutional.

But will the Supreme Court actually review such a law and declare it unconstitutional?  Based on the precedent of the income tax, no.  But the reasoning offered by Roberts and the majority is very specious and very flimsy.  It begs to be reversed.  It is no wonder the dissenting Justices are very unhappy about this decision.  This decision has brought great disdain upon the Supreme Court majority by those who value reason and expect it to be valued by the Supreme Court.  The Supreme Court has once again failed to protect the sovereign rights of the individual to life, liberty, property, and the pursuit of happiness.

Supreme Court Betrays Individual Rights Completely

By upholding the constitutionality of the abomination known as ObamaCare, the United States Supreme Court has joined the House of Representatives, the Senate, and the current usurping presidential office holder in violating the Constitution and the very concept of sovereign individual rights.  Each of the four institutions and three branches of the federal government has failed its constitutional mandate to limit the powers of the federal government in accord with the enumerated powers given the government in a blatantly obvious overreach of power.  Obama and a Democrat House and Senate betrayed their duty to protect our equal, sovereign individual rights to life, liberty, property, the ownership of our own minds and bodies, and our personal pursuit of happiness by passing this tyrannical act.  The Supreme Court, in a declaration of its complete uselessness, backed this Democrat Socialist seizure of power.  It declared that every American mind and body belongs to the collective and is not owned by the individual.

In order to perpetuate this heinous act, it declared that the basis on which ObamaCare was passed by the legislature was a fraud, but the Supreme Court exists to quash individual rights in the name of fraud.  Despite repeated claims by the House, Senate, and Obama that the penalties for not purchasing a government prescribed healthcare plan were not a tax, the Supreme Court decided it was a tax.  What is more, it fallaciously claimed that the tax was necessary and proper to the function of legitimate government.

I will once again remind everyone that our Declaration of Independence defined legitimate government as one whose sole function was the protection of our equal, sovereign individual rights to life, liberty, and the pursuit of happiness.  ObamaCare is an interference with my control of my life in a most basic and fundamental way.  It refuses to allow me to maintain my own life.  It is clearly a huge restriction of my liberties.  I can further assure you that this law prevents me from being happy and will very likely subject me to future personal pain due to my own future medical problems and due to any suffered by those I love.

The passage and upholding of ObamaCare is the end of a "long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces [here, evincing] a Design to reduce them [the People] under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security."

Despite the unified federal government claim that my mind and body do not belong to me, I declare that they do belong to me and only to me.  My individual rights are mine whether this tyrannical government chooses to recognize that fact or not.  Until such time as the federal government resumes its responsibility to protect rather than to violate individual rights, it no longer has any claim upon my goodwill.  My sole allegiance is to my individual rights and to those who demand their own individual rights.  Those who would steal my mind and body, who would force me to buy health insurance, who would further force me to buy the insurance of their choice rather mine, who claim the life and death power to have DEATH PANELS decide how long I may have to suffer without medical treatment and whether or not I can receive life-extending medical care or not, are my sworn enemies.  These people are thieves and would-be slave masters who have earned nothing but my disdain.

I am in a state of Rebellion in fulfillment of my Duty and my Right as recognized in the Declaration of Independence.  I will seek to carry this rebellion out by ousting the Democrat Socialists from control of the Senate and the presidency and by further reducing their numbers in the House of Representatives in the November 2012 election.  I will, if there is success in this, then do all in my power to see to it that future Justices chosen to the Supreme Court are not tyrants and sycophants to tyrants.

If the November elections do not remove these Intolerable Tyrants from public office, then more drastic means of rebellion will be necessary.  Under no circumstance will I buy any health insurance plan mandated by ObamaCare.  I fully expect that draconian despotic act to try to send me to prison for five years.  Let them try.

Williams: The Founder's Vision Versus Ours

Professor Walter E. Williams has once again written an essay I very much admire.  Every American should read this essay to understand the essence of the American ideal of government and as inspiration for the second American Revolution in which we must engage the enemy once again to save the American Republic and to finally bring about its perfection in individual liberty for all.  I am sure you will enjoy The Founder's Vision Versus Ours.

EPA Rewrites the Clean Air Act for CO2

The Obama EPA has ruled that CO2 is a dangerous pollutant and is to be regulated under the Clean Air Act of 1970.  This act was not intended to regulate CO2.  It was intended to regulate such gases as SO2 and NO2 and the regulated emissions threshold was set at 250 tons per year as a result.  The 2006 case of Massachusetts v. EPA was decided by the Supreme Court by a 5-4 decision and ruled that the EPA was empowered to make an endangerment decision on CO2, then widely claimed to be the cause of catastrophic man-made global warming due to the use of fossil fuels, such as coal and oil.  The EPA has since declared that CO2 emissions are emissions of a pollutant that it will regulate them under the Clean Air Act.  This ruling has been challenged with many lawsuits, see here and here.

The 250-ton per year pollutant level in the Clean Air Act requires that every establishment emitting that amount of a pollutant be restricted from doing so. If CO2 is such a pollutant, then the 280 Prevention of Significant Deterioration pre-construction permits per year will shoot up to an estimated 41,000 per year. The present 14,700 Title V operating permits per year will become over 6 million! This is why the EPA is trying to use a tailoring rule to change the legislated 250 ton per year requirement of the Clean Air Act to a limit two orders of magnitude larger of 25,000 tons per year for CO2. This is unconstitutional and we can be certain that environmentalists will challenge this to force the EPA to regulate smaller and smaller emitters of CO2.  Opponents of the regulation of CO2 emissions under the Clean Air Act should be able to challenge the EPA's change from the clearly legislated and required threshold of 250 tons of emissions per year, to force the EPA to stop claiming the Clean Air Act as their authority for regulating those emissions.

Just as the economic damage and the human carnage of the high energy tax on carbon or the cap and trade legislation has kept the Senate from passing a bill to that purpose, despite the House having passed such a ridiculous bill, the consequences of the EPA enforcing the Clean Air Act for CO2 emissions would be catastrophic.  This is why it is desperately trying to change the CO2 emissions limits, though it does not have the legislative power to do so.  The EPA will have a terrible political backlash on its hands if it tries to regulate CO2 emissions at a 250 ton level.  Apartment buildings, bakeries, restaurants, and many more very moderate sized businesses would then have to deal with the EPA's emissions regulatory paperwork, legal, and expense nightmare.

Equal Rights in Domestic Partnerships

Robert A. Levy, Chairman of the Cato Institute, and John D. Podesta, President of the Center for American Progress, wrote an interesting article for the 8 June 2010 Washington Post called Marriage Equality for All Couples.  They noted that the 1967 case of Loving v. Virginia, ended the ban on interracial marriage in the 16 states with laws banning it at the time.  The Supreme Court unanimously ruled that "marriage is one of the 'basic civil rights of man.'"  This decision was based on the 14th Amendment, ratified in 1868.  Sadly, it took 99 years for this ruling to finally be made.  At the time of that decision, 74% of Americans disapproved of interracial marriages.  Twenty years ago, only 6.8% of newly married couples said they married outside their race or ethnicity.  That number is now 14.6% according to a recent Pew Research Center study.  Clearly, the earlier prejudice against interracial marriages has subsided and more and more Americans are claiming their equal right to marry, whatever their racial mix may be.

The right of people to marry who are not heterosexual has not yet been given a basis in the federal courts.  In 2003, the American opinion was that only 37% supported same-sex marriages.  A February Washington Post poll found that 47% of Americans now support same-sex marriages.  65% of those ages 18 to 29 support same-sex marriages, so the trend will continue in the direction of increasing support.  Robert Levy and John Podesta are the chairmen of the advisory board of the American Foundation for Equal Rights, which is supporting the case of Perry v. Schwarzenegger.  This case is aiming to have California's Proposition 8 outlawing same-sex marriages declared a violation of the 14th Amendment and is now before the federal district court in California.  The case is likely to be appealed to the Supreme Court.  It ought to win the freedom for all couples to enter into equal marriages.

I have long made it clear that government should not be claiming to play a role in marriage at all.  For many, marriage is a spiritual union and I fully understand that concept even though it is not the case that I believe in a god.  There is good reason to reserve the term marriage to meaning a spiritual union and allowing people to control that spiritual content in their marriages without any presumption on the part of government that it has anything to say about that spiritual content.  Those who are religious or who have spiritual values which are not religious are best served by adopting a more appropriate term for the contract that government offers to couples.  It would be better if this were universally called a domestic partnership contract or agreement.  All of the issues which involve government are better described as contractual in nature.  Recognizing this, provides a separation of church and state in marriages/domestic partnerships which would help to diminish the passion of the argument from religious quarters against equal rights in domestic partnership contracts.

As I have written many times also, domestic partnership agreements ought to be a parallel to small business partnerships in that government does not dictate the sex or number of partners.  Two men, or two women, or two men and two women, or any other combination of several people ought to be free to enter into a legal domestic partnership contract.  Joint property, joint responsibility for raising children, the sharing of income, and critical medical decisions and support could readily all be incorporated into such domestic partnership agreements.

Very likely, most families would still be built around one father and one mother, but the huge number of divorces and resulting serial marriages are clear evidence that one-man-one-woman marriages do not work for large numbers of people.  Sometimes the failure is largely the result of two people becoming bored with one another or of one simply yearning for some change of pace.  Sometimes, the couple simply do not always share the same cycle of need for sex.  Sometimes, the strains of earning income, cleaning house, purchasing food and clothes, maintaining the house and cars, agreeing on a common vacation, and raising the children are simply too much for two people.  Some people would do better in larger domestic partnerships in which tasks are spread over more specialists or where they can be varied over time.  With most public schools having severe shortcomings, many such extended family groups would be able to have a member or two specialize in home-schooling the children, while a sufficient number of others remain to bring home the bacon.  One member might be particularly good in managing the family investments, while another is great in playing with the kids and caring for the yard.  One may love to cook, while another loves to work on the cars and keep them running.  Another may like purchasing the groceries, the furniture, and the clothes for the children.

Of course, in many such cases, family members may have the option for having a sexual life enriched by more than one sexual partner.  Sex is one of man's greatest pleasures in life.  It is very important to many people that they are able to optimally enjoy this pleasure.  There is no valid ethical principle that says that it is immoral for a man or a woman to have more than one sexual partner in any period of his or her life.  The ethical issue is whether the person one chooses to have sex with is a person of good character who is of great interest to and highly valued by the chooser.  If someone is fortunate enough to find more than one such person with whom they can form a more intimate bond with shared life-affirming sexual pleasures, people of good will ought to be ready to simply wish them the best.  This is true whether the individuals in the serious and sincere sexual relationship are of different sexes or the same sex.

A knowledge of history makes it very clear that while some people may be entirely heterosexual, very many people are bisexual or homosexual.  When societies are not burdened by severe heterosexual bigotry, it is clear that many people are happy to give outlet to their bisexual or homosexual desires and choose to pursue their happiness in that way.  In our present time, the video market in erotic movies and the rich offering of sexual images and discussions offered on the Internet, make it clear that sex is both of great interest to many people and that their interests are highly varied.  These interests, when given anonymous expression, do not conform to the publicly affirmed principles dominant in our society.  It is clear that many sexual interests are being suppressed, some for good reason, but many for no more reason than traditional prejudice.  It is no one's right to interfere with the exploration, development, and expression of another's optimal sexuality, so long as only consenting adults are involved.

We are all complex and highly differentiated individuals and one of the great expressions of that is in our sexuality.  To suppress the sexual development and expression of others is to attack the rights of the individual in a very basic and fundamental way.  This is an attempt to deny the nature of man and as such it is not consistent with a rational understanding of man and reality.  Let us hope that a step in the direction of our sexual liberation will be made with a Supreme Court decision that same-sex marriage must be allowed because all people have an equal right to pursue their happiness in domestic partnerships.