Sunday, June 28, 2015

The Continuing Slide Into Tyranny, Part III

In yet another decision, Justice Kennedy joined the 4 liberal justices (Kennedy is mostly a liberal) in a decision involving the Fair Housing Act of 1968. That Act made it illegal to discriminate in housing on the basis of race. However, in another 5-4 decision, the Court said that it was illegal to have a "disparate impact" in housing, even where there is no evidence of actual discrimination. You see, according to Kennedy's logic, after lower courts found that "disparate impact" was part of the law, the Congress had various opportunities to pass legislation making it clear that, no - we never included "disparate impact" in the law - and we meant it.

But in the Bizarro world in which we now operate, the failure of Congress to act means that Congress did act. Let's just hope that the first new low-cost housing goes up in the neighborhoods occupied by the wealthy liberal democrats.

With a government completely out of control, the last hope to call them to task is the "Fourth Estate," the media. But the mainstream media is now part of the left-wing, politically correct "the ends justify the means" establishment. So do not look for today's media to concern itself with an "imperial" presidency, or a runaway Supreme Court.

The 6/26/15 lead editorial in the New York Times called both the 2012 challenge to Obamacare (the penalty vs. tax issue), as well this recent challenge as being "legally frivolous." So frivolous that 4 Justices dissented the first time and 3 dissented this time. The Times said the current challenge to the law was "fabricated...out of thin air." Once again, the Times made no mention of Jonathan Gruber, a key architect of the law, who publicly said that the purpose of limiting the subsidy to the State exchanges was to encourage the states to establish their own exchanges. Yet the Times claimed that such an interpretation was "preposterous." If you just read the mainstream media you would not even know the name Jonathan Gruber. You would not know or understand why an issue even exists. (The LA Times editorial was not substantially different.)

There is insufficient time, and space in this post, to discuss the 5-4 decision declaring gay marriage to be a Constitutional right. What I do wish to point out is that one mainstream newspaper has already declared that they would "no longer accept" and print letters to the editor or op-ed pieces opposing gay marriage. And there you have it with the mainstream media's approach to presenting all sides in the marketplace of ideas. You see, our President has told us that "global warming" is settled, and those holding opposing views are anti-science (even if they are scientists). Gay marriage is the law of the land; anyone opposing it must be a bigot and a hater - so their voices need to be shut down. If you oppose abortion it is because you hate women. If you believe in the right to bear arms... Well, you get the point. Or do you?

You see, I am not sure that my liberal friends do get the point. I am not sure that they are concerned with the damage done to our liberty, and to our system of government, by these cases, simply because they agree with the outcomes. The ends justify the means. I am not sure my liberal friends who constantly mock Fox News understand the very real service that that news outlet provides - challenging runaway government power the way the mainstream media used to do.

This is just the beginning. We will see many cases where the new Constitutional right to gay marriage conflicts with the First Amendment Constitutional rights to free speech and freedom of religion. Did you see how quickly governments and retail stores moved to take down and remove from their shelves all confederate flags, or items depicting those flags. Which side will you be on when the next move is to take down the American flag - the Stars and Stripes - because some feel it is a symbol of racism, and oppression and imperialism. Are you confident that the line will always be drawn where you think it should be drawn? Or maybe, just maybe, we are better off sticking to fundamental principles.

The Continuing Slide Into Tyranny, Part II

Here's the problem. Under our Constitution, only the legislative branch - Congress - has the power to write laws. It was bad enough that the Executive branch - President Obama - decided to rewrite the ACA on his own when he delayed implementation of certain provisions, contrary to the express wording of the statute; and unilaterally granted certain exemptions not provided for in the statute. Now, the Supreme Court has taken it upon itself to write laws by rewording the statute. We have an extraordinary system established by our Founders - 3 separate branches of government, each acting as a check on the exercise of unbridled power by the others.

As with any system, it depends upon the good will of those carrying out what they are entrusted to do. Today, we have an "ends justify the means" approach to governing, with the result being that, rather than act as a check upon one another, the 3 branches act in unison to enforce whatever they may deem appropriate - and the effect on individual liberty be damned.

What should have happened in King vs. Burwell was a decision allowing the subsidies to the States only, as the law was written. If it was written in haste or sloppily, it is the job of the Congress to fix it. Legislative bodies pass "clean-up legislation" all the time. The Court was not only concerned with the policy outcome should the subsidies be denied; but, in this writer's opinion, did not trust the Republican Congress to fix the law. So now, we have every branch of government engaging in the writing of laws, with the result being that that the Constitutional separation of powers is gone.

Just imagine what a President with even greater dictatorial inclinations than has Obama might do with this now unlimited power. Congress may pass a law that says everyone must vote. Then a President adds "and if you don't you pay a tax." And then the Supreme Court says "yes;" obviously Congress intended that enforcement mechanism or the entire premise of the law may fail. That is just what the IRS did in amending the law to grant subsidies to those in the federal exchange; and then the Court (which was worried that the insurance market would destabilize if they did not support the IRS in adding "or Federal Exchange"), went along with the entire scheme.

Now, the separation of powers is a myth. Compounding the problem with the Roberts' decision is the attack on "federalism" as well. We have not only a federal government, but 50 different state governments, with each also considered a sovereign entity with certain powers. Therefore, even if the Republican Congress failed to fix the perceived problem with the ACA, the states could have done so. With 34 states not having established an exchange, a decision disallowing a subsidy to those in the federal exchange might have prompted those states to reconsider their decision - and establish an exchange - in order to get the subsidy for their residents.

But, just as Roberts and those in the majority showed utter contempt for the separation of powers, the same contempt was shown for the idea of federalism; the idea that states as sovereign entities could decide on their own what would be best for their citizens.

The Continuing Slide Into Tyranny, Part I

The progressive movement has been chipping away at individual liberty since the beginning of the last century. Rather than recount 100 years of history, let's start with 2005 and then jump to today.

In 2005, Justice Anthony Kennedy joined four other liberal Justices in the case of Kelo vs. City of New London. Those five Justices completely rewrote the part of the Fifth Amendment to the Constitution that deals with eminent domain: "...nor shall private property be taken for public use, without just compensation." A "public use" was always considered to be just that - a school or library or highway, as examples. In the Kelo case, "public use" was redefined to mean government may take your property and give it to another private citizen (such as a developer), if the new use under the new owner would generate greater tax revenue (say a strip mall in place of your house). That new definition of "public use" gave government at all levels the unlimited power to take anyone's property if they could generate more tax revenue from that property.

This past Thursday the Supreme Court handed down their decision in the Affordable Care Act case (King vs. Burwell). While the statute provided subsidies to those enrolled in "an exchange established by the State," Obama decided that language was unsatisfactory. Thirty-four states did not set up an exchange, although the residents of those states were eligible to enroll in the federal exchange. The IRS, under Obama, took it upon themselves to grant subsidies to those enrolled in the federal exchange, notwithstanding the limiting language of the statute.

Generally, courts will defer to an administrative agency's interpretation of a statute where the language is ambiguous. Here, the plaintiffs argued that the language was plain - the subsidy was available to those enrolled in an exchange established by the State.

As a reminder, 3 years ago Chief Justice John Roberts took it upon himself to rewrite the ACA in order to uphold its Constitutionality. Then, the argument was that the Constitution did not give Congress the power to order people to buy insurance, or pay a penalty for failing to do so. Roberts agreed that the Commerce Clause (frequently used to expand government power) could not justify a mandate to buy insurance. Therefore, Roberts rewrote the statute so that the failure to purchase insurance was a "tax," rather than a "penalty;" and then upheld the law under Congress' taxing power. The four liberal Justices would have voted to uphold the law under the Commerce Clause, seeing no problem in Congress telling you what to buy.

This week, Roberts joined the majority again, and again rewrote the legislation to suit his purposes. Having previously declared the penalty was a tax, this time he said that an exchange "established by the State" actually meant "an exchange established by the State or Federal Government." So what's the problem? Wasn't this just an oversight by Congress? Per Roberts, wasn't this a case where "the Act does not reflect the type of care and deliberation that one might expect of such significant legislation?"