Wednesday, July 23, 2014

A Tale of Two Courts


With news of federal appeals court decision out of Washington, DC, in the morning on July 22nd, I thought, "this is the best of times."  By the time the day had ended, and word came of another appeals court's decision on the same issue out of Richmond, Virginia, I thought "this is the worst of times."  As it turns out, the two decisions are a quite potent tutor on the importance of the kinds of people that are put, by our votes, in Congress, and in the White House.  As you will see if you read on, the political identity of Presidents that appoint judges provides a nearly perfect predictor of judicial philosophy.

Allow me to explain:

Two federal appeals courts issued decisions regarding a contentious issue arising from the Obama administration's interpretation and application of an aspect of the Obamacare statute.   In one decision, from the US Court of Appeals for the District of Columbia Circuit, two out of three judges concluded that the IRS overstepped legal bounds when it adopted a rule permitting a insurance premium tax credit be allowed in instances where the consumer purchased health insurance through the federal health insurance exchange.  In the other decision, from the US Court of Appeals for the Fourth Circuit in Richmond, Virginia, three judges concluded that the exact same IRS rule was a reasonable interpretation of the text of the Affordable Care Act.

Briefly, Congress set up a two tiered system to accomplish its goal.  A charitable construction of Congress' goal would be to obtain the widest possible inclusion of Americans within health insurance coverages.  Until Obamacare became the law, health insurance was, virtually entirely, a question of state law and state regulation.  When the Democratic Party controlled Congress adopted the Obamacare laws, at least a thin skin of pretense required Congress and the President to pretend to respect the traditional, constitutionally affirmed, role of States in such matters.  To do that, Obamacare provides for State health insurance exchanges to be set up in States willing to do so.

Moreover, to encourage widest possible participation in those State exchanges, Congress included a provision that has the effect of subsidizing the cost of health insurance premiums by granting a tax credit for payments on such premiums.  Congress also created a federal health insurance exchange because, with more than a majority of State legislative bodies in Republican Party control, there was a reasonably predictable possibility that many States would not create such exchanges.

The Congress that enacted Obamacare, we must presume, knew how to draft legislative language creating a health insurance exchange.  After all, they employed such language twice:  in creating the State exchange program, and in creating the federal exchange program.  The Congress that enacted Obamacare, we must ALSO presume, knew how to draft legislative language providing that a health insurance premium tax credit would be available to certain taxpayers (based on income).  After all, Congress employed such language once:  in authorizing the allowance of a health insurance premium tax credit for eligible subscribers who purchased their health insurance through the State-created health care exchanges.

And therein, as they say, lies the rub.  Because the Congress that knew how to create exchanges, the Congress that knew how to authorize the IRS to allow for health insurance premium tax credits for certain income-based subscribers, that very same Congress, legislating through that very same exact bill, DID NOT authorize the IRS to allow for health insurance premium tax credits for certain income based subscribers who purchased their insurance through the federal exchange in their State because the State had chosen not to set up such an exchange.  (As it turned out, Congress was not entirely myopic.  More than half the States declined the invitation in Obamacare to set up a State exchange.)

Despite the absence of Congressional authorization to do so, the IRS announced, took comments on, and made final a rule allowing for a health insurance premium tax credit for income-qualified purchasers whose health insurance was bought through the federal exchange in those States without a State health care exchange.  That rule has the effect of spending federal tax monies.  But neither the Affordable Care Act, nor subsequent authorizations legislation, nor subsequent appropriations, have authorized those expenditures of federal funds by the IRS.

Remember that in the progressive/Democrat mindset, money in the hands of another as a result of a tax credit is an expenditure of federal funds.  That very reasoning is why, in every discussion regarding taxes and spending, Democrats insist that tax credits funded by such enactments must be funded through other taxes.  In other words, they argue, if you are going to give a tax credit that has the effect of reducing the total federal tax haul by, say, 1 billion dollars, then that "purchase" must be offset by other tax increases to cover the billion dollar loss.

But, setting aside the highly political nature of the seemingly intractable dispute over Obamacare, judges and lawyers ARE REQUIRED to accord a kind of respect to a legislative body's language choices.  For example, if a statute stated,  "No Motor Vehicle Operator Permit or License is to be issued to a person unless, first, the Department of Motor Vehicles obtains a copy of a birth document certified by the Department of Vital Statistics to be a true and correct copy of the original," then courts and judges, following hundreds of years of legal history and development, would know that the DMV could not accept a hand drawn, with crayon, reasonable facsimile of a birth certificate unless it bore a certification that it was a true and correct copy of an original birth certificate.  Neither courts, nor lawyers, nor governors, nor legislators, NOR EVEN PRESIDENTS, have any legal justification for pretending that a statute includes language it omits, nor omits language it includes.  Certainty in the law requires that this be so.

Returning to the appeals courts decisions and the impact of political identity of presidents making such appointments, there remains this to be said.  Six different judges participated in the making of the two appeals court decisions yesterday.  Four of those judges were appointed by Presidents who are Democrats; two of those judges were appointed by Presidents who are Republicans.  All three judges in the Fourth Circuit majority, and one judge, the dissenting judge in the DC Circuit decision, were appointed by Democrats.  Two judges, the majority in the DC Circuit decision, were appointed by Republicans.
As they say, elections have consequences.

It is not every day, however, that one consequence of elections is that potentially criminal conduct by the President or his administration will be given a wink and a nod from the bench.  But yesterday was one of those days in Richmond, Virginia, and in Washington, DC, where the dissenting judge was willing to give the wink and the nod, but failed to garner a majority.

And while some will say that raising the specter of criminality is hyperbolic,  I disagree for a well-founded reason.  For more than a century, a federal law known as the AntiDeficiency Act expressly bars federal agents and agencies from spending unappropriate funds.  That statute is direct and clear:  "An officer or employee of the United States Government or of the District of Columbia government may not ... make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation[.]"  Violation of that statute is, itself, a crime:  "An officer or employee of the United States Government or of the District of Columbia government knowingly and willfully violating [that] section [] shall be fined not more than $5,000, imprisoned for not more than 2 years, or both."

Thus, not only is the IRS rule unauthorized by the Affordable Care Act, it puts the Commissioner of the IRS and IRS employees in the position of violating the Antideficiency Act.  Unlike other federal executive adventures outside the law, such as the alleged violations by the Reagan administration of the Boland Amendment, violations of the Antideficiency Act are, expressly, criminal acts subject to prosecution, and conviction carries the risk of fines and imprisonment.  The decisions of the DC Circuit and the Fourth Circuit directly conflict with each other, invite uncertainty as to the meaning and application of the Affordable Care Act, and raise the twin specters of judicial disregard for statutory language and IRS administrative disregard for Congressionally authorized appropriations.

Ultimately, these cases, one or both, will come to the Supreme Court of the United States.  The "losers" in either case can, of course, apply to the same appeals court for reconsideration.  In fact, because of the OTHER COURT'S DECISION, there are better than normal prospects in both cases that the decisions by panels of the DC Circuit and the Fourth Circuit will be reconsidered by the entire court of appeals in each case.  After all, conflicts between courts of appeals on a question of federal law are a justifiable reason for such en banc review by the whole court of a panel decision.  But there is little doubt that the Supreme Court will have the opportunity, and may have the need, to review these cases.

The opportunity will arise if any party below is dissatisfied by the outcome they got at the appeals court in their case; that outcome is assured.  The need will arise in either of two possible circumstances.  First, if, at the end of the day, the decisions of these two courts remain in conflict as to the meaning and application of the Affordable Care Act, then Supreme Court review is always helpful in insuring that a single rule of law governs throughout the United States.  Second, if, at the end of the day, the Supreme Court, in evaluating requests for hearings, concludes that one of the courts, or both, have incorrectly construed and applied the language of the Act.  For now, the uncertainty created by the Obama Administration's lawless extension of the State Exchange health insurance premium tax credit to federally operated health exchanges is compounded by the uncertainty of the conflicting decisions yesterday.

Legal observers are often invited to make predictions of future actions by courts.  And this takes me back to the topic of this post.  Since taking office, Obama has now appointed enough appeals court judges so that Democrat-appointed judges constitute majorities of the active judges in both the DC Circuit and Fourth Circuit.  Given that party of appointment is, at present glance, a direct predictor of judicial outcome, I will make this prediction:  if either appeals court grants rehearing by the whole court, then it is likely that the whole court will uphold the IRS renegade rule.  And that is a certainty that benefits no one.

Monday, July 21, 2014

Senate Prefers Pandering Over Responsibilities of Office

Today's Jacksonville Daily News carried the story on legislative activities in Washington, DC.  Through the unjaundiced eye of the author, Charles Babington, we had the chance to see through the hubbub of votes and speeches to the realpolitik at play in these humid days of a Washington summer:  Democrats, who control the Senate, are floating legislative proposals that will not become law, that they know will not become law, because the proposals cannot pass muster in the Republican Party controlled House of Representatives.  Babington puts a tidy bow on what actually is occurring as statist Democrats in the Senate conduct their theater of the bizarre.In Babington's words, the bills being brought to the floor are only being brought to the floor to force Republicans "to vote on sensitive matters that might rile women this fall."  One wishes it were otherwise, that Democrats in the Senate and Republicans in the House would attend to the actual business of the Congress.  The actual responsibilities of the Congress pertain to the legislative aspects of the responsibilities of the central, federal government.  

James Madison, writing in The Federalist No. 41, neatly summarized the responsibilities assigned by the States to the federal government under the Constitution proposed by the 1787 Philadelphia Convention.  Explaining his view that the States did not grant too much power to the federal government, he wrote, to 

"form a correct judgment on this subject, it will be proper to review the several powers conferred on the government of the Union; and that this may be the more conveniently done they may be reduced into different classes as they relate to the following different objects: 1. Security against foreign danger; 2. Regulation of the intercourse with foreign nations; 3. Maintenance of harmony and proper intercourse among the States; 4. Certain miscellaneous objects of general utility; 5. Restraint of the States from certain injurious acts; 6. Provisions for giving due efficacy to all these powers."  

A complete review of The Federalist No. 41 (and Nos. 42 and 43 that complete his thoughts on the topic) is not possible here.  It suffices that he has identified in a single power the essence of the responsibilities of the federal government as securing the Nation from external dangers, regulating relations with foreign nations, insuring harmony and intercourse among the States, and preventing the States from undertaking certain acts injurious to the People.

The Senate has all the time in the world, apparently, to conduct "show" votes on issues designed to inflame the passions of various interest groups.  What the Senate does not have time to bring to the floor for a vote are appropriations bills, program authorizations bills and agency authorization bills.  Not much of a surprise for students of the Senate's behavior under the leadership of Harry Reid.  The Senate has failed, consistently and continuously, to bring appropriations bills to the Senate floor throughout his tenure.  The pinch of sequestration, the pinch of forced shut-downs, these all flow from the battle that follows after the failure to timely prepare, consider, and approve appropriations legislation.  The House of Representatives has done this job consistently and timely year after year.  The Senate brings to this essential task the speed of the slow loris, the wisdom of a clown, and the earnest sincerity of a used car salesman.

And, though one may wonder how appropriations legislation fits within the essential responsibilities of the federal government described by Madison in The Federalist No. 41, the answer, it turns out, is direct and clear.  The actions of the federal government are accomplished through human intermediaries.  Federal troops, federal bureaucrats, federal law enforcement agents, these are paid employees; they work in offices, buildings and campuses that require heat, light and power.  They are employed to accomplish the objectives (constitutionally legitimate or otherwise) designated in federal legislation and regulations as their responsibility.  The failure to develop, consider and approve an appropriations bill to fund the activities of the Department of Defense is, in its essence, a decision to risk or cause the discontinuation of the activities of that Department.  The dread, or silly, Environmental Protection Agency may run on scientific fumes but requires real cash to do its work.  So the Senate's consistent failure to conduct appropriations and authorizations legislative activity is gross negligence of duty.

Worse, it is this naked pandering.  Pandering that assumes that women do not know that they can obtain birth control of any kind authorized by the FDA simply by spending their own funds for them, and that they will prefer that the Senate force these kinds of show votes rather than do its duty.  


Listen in to the Democratic Caucus as it ponders how to proceed with its legislative agenda in the Senate:  "We need to distract voters from Barry's catastrophic Obamacare rollout," Senator So and So opines.  "Heck, folks," the hen's tooth rare Southern Democratic Senator drawls, "we need to distract voters from Barry's catastrophic Obamacare legislation."  "The problem, my learned colleagues," Harry Reid trumpets, "is that if we actually do what we were sent here to do, we won't have gotten the special interest groups we need on November 4th worked up to a frothy frenzy."  The clopping sounds of the tennis-shoed Patty Murray approach, "This isn't about November!  This is about the injustice of a Supreme Court decision that leaves women exactly where they were before Obamacare:  paying for their own contraceptives, rather than being able to shift those expenses onto others."  Reid, interrupting, "Senator Murray is correct.  We can, we should, we must bring to the floor for an immediate vote legislation overturning the Hobby Lobby decisions."

Not heard in the background of that noise are the soft crunching of gravel under boots as American service members walk into, through and beyond dangers on virtually every continent.  Ignored in the press to do this entirely sophistric act of legislative Kabuke theater are the pleas of communities along the southern border to act to reduce the tidal wave of illegal entries into the United States, along with the warnings of those with reason to know that the flood is not just of those seeking a better life here, but also includes, or is at risk of including, those who meld into the flood, so that, on entry into the best and brightest hope of mankind on earth, they can bring terror to the people whose interests have been sacrificed in the Senate in the interest of partisan politics.

Will women respond as hoped by the Democratic Party cabal in the Senate?  I do not have a crystal ball.  I do have a grasp of history.  How this fall's election goes depends greatly on the love of liberty or the preference for personal interest.  If women who love liberty vote accordingly, then the Senate will pass out of the hands of those who have fecklessly and recklessly ignored their actual duties.  If women who prefer personal interests fattened by the largess of government, then our long struggle to make a way forward out of continuing economic malaise and social agitation needs must will continue.

Saturday, July 19, 2014

Lousy Military Housing, But Does the Government Give a Crap? Hell, They'll Give Military Families More than Just a Crap!

My daughter married a young man who worked as a warehouse manager.  He responded to the Nation's call for soldiers and enlisted in the Army.  Since that enlistment and his completion of boot camp, he has been stationed with units headquartered at Ft. Hood, Texas, and now at Ft. Bliss, Texas.  The housing at Ft. Bliss is substandard and, frankly, sometimes unsafe and unsuitable for human habitation.

For example, just this week, my daughter was bathing our granddaughter when backflow pumped sewage from the community into the tub while the young girl was in it.  I am including the picture here:



Thankfully, contractors were dispatched and they cleaned this mess out.  But, for goodness sake, how does the Army justify allowing facilities to fall into such a state of disrepair that the life, health and safety of dependents are put at such high risk.

By the way, if you think that I'm making too much out of it, just send me your home address and I'll give it to the nearest honey bucket company and they can give you a tub full of other peoples' shit to ponder over.

Shame on the United States Army.  Shame on facilities managers at Ft. Bliss.  Your conduct does not inspire loyalty, devotion, a sense of camaraderie, or esprit de corps.

Monday, July 14, 2014

Bob Goodlatte vs. Alexander Hamilton: Why Obama Can Be Impeached

So the thinking is, among some Republicans, including Bob Goodlatte, chairman of the House Judiciary Committee, that Obama has not committed acts that warrant impeachment, that his record is free of the kinds of crimes warranting impeachment.

Beg pardon, but the Constitution is where Congressman Bob Goodlatte should start a search for the scope, meaning, and application of the Constitution’s provisions regarding impeachment. There, in plain language, impeachment is allowed for treason, bribery, and other high crimes and misdemeanors. And if Goodlatte demurs that he cannot find a meaning of "high crimes and misdemeanors," then I would direct him to a source undoubted in its standing as the First Word, if not the last one, on the meaning of the Constitution. That source, of course, is the Federalist Papers.

In The Federalist No. 65, Alexander Hamilton, writing as Publius, is turning to a question of the decision by the Constitutional Convention to assign to the Senate the power to serve as the "Court for the Trial of Impeachments." He wants it to be understood why the Senate, not the House, not the Courts, not some other body was to be preferred for trials of persons impeached by the House. To move to that question, he first takes note of what manner of questions and conduct would bring an officer of the United States, even the Chief Executive, before such a court.

And it is answering the answering of that question that Publius clarifies the matter for Goodlatte:

"those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself."

If you don't have your own copy of the Federalist Papers, but want to scope out Hamilton's argument in full, it is available online in many locations, including at Yale University's online Archive, The Avalon Project. You can view The Federalist No. 65 here.

For now, though, I thought it sufficient to begin re-thinking the error of Goodlatte's assertion with Publius/Hamilton's own careful construction of the offenses that fall within the scope of impeachment. Publius explained, again, that impeachable offenses are ones that "proceed from the misconduct of public men ... from the abuse or violation of some public trust[, t]hey are of a nature which may be ... denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself."
While Goodlatte seems focused on the absence of some video of Obama taking a multi-billion dollar bribe from George Soros or the like, or of using an electrical prod on a helpless child as a means of feeding some twisted sense of sexual delight, or perhaps even of swiping candy from a baby, THAT IS DECIDEDLY NOT with what the impeachment power is principally concerned.

Instead, in the view of Publius/Hamilton, the nature of the wrongs to be accounted for in impeachment are those that:
  1. proceed from misconduct
  2. of public men
  3. by the abuse of some political trust or
  4. the violation of some public trust, acts that can and will be, in the main,
  5. denominated POLITICAL in nature and which
  6. relate chiefly to injuries done immediately to our society itself.
Now, if Goodlatte thinks that Obama's actions do not qualify for impeachment, then, to be honest, the voters of Virginia can do nothing better to improve the common lot of us all than to vote for someone other than Goodlatte in the fall.

So what injuries, denominated as political, has Obama inflicted on our society?

Begin with the retooling of the Internal Revenue Service as a tool for the suppression of disagreement with the President, as a tool for the prevention of education about the Constitution, its meaning and its application to our times and troubles.

Continue with the likely actual crime of the destruction, not of one or two IRS computer hard drives, but of SEVEN; the naked cover up of criminality by the Chief Law Enforcement officers of the United States is a grave injury to society itself.

Continue from there.

What about Obamacare, the so-called Affordable Care Act. Even if all that it represents is the bumbling and abysmal stupidity of putting in charge of the start up of a national program for the federal insurance exchange a Canadian company that lost contracts in their home country for the same reasons of unpreparedness, indolence, and failure, it is too much.  Having as our Chief Executive one who hires buffoons and incompetents suffices to state the ground of injury to society itself.

Do not stop with the terribly incompetent roll-out of Obamacare. Because there is more to the problem than that sign-ups for Obamacare were frustrated by the fifth-rate incompetence of the website designers. We were, as a Nation, sold this bill of goods on the claim of its essentiality to our national economic health. We were told of the importance of this NATIONAL MANDATE, of the harms that having such uncertainty govern the affairs of an economic enterprise that constitutes one sixth of our entire national economy. As it turned out, however, the Chief Executive immediately began doling out exceptions and exclusions from mandates in the act, and delaying implementation of provisions of it.

Exclusions and exceptions went to industries and unions whose cooperation are/were essential to the success of the Administration's ongoing enterprises. A simple matter of quid-pro-quo lifting of requirements based on claims of need. Delays, as we know, were imposed in order to give the Democratic Party what it really needed: a time machine. They needed then, and need now, NOT TO HAVE a bruised and broken electorate going to the polls on November 4, 2014, remembering who it was, which party it was, that single-handedly delivered our health insurance, our health care, into the maws of the great leviathan, the federal government. So delay, delay, delay.

What is missed for many though is the meaning for the whole enterprise of Obamacare to be drawn from delays, exceptions and exclusions. An enterprise that is so swiss-cheesed on the basis of partisan interests of industries, unions and politicians may be many things, but it is hard to argue that it is an essential one.

No sense stopping at Obamacare, given this Administration's decisions to run guns. Fast and Furious, of course, run by Attorney General Holder, put guns into the hands of Mexican cartel drug lords. Some of those guns came back to the United States and were even used to kill American federal employees. Just as evil, others of those guns stayed in Mexico; in one of the most heart-rending instances, the guns were used to slaughter 12-, 13- and 14-year old girls attending a birthday party. 

But Obama's gun running extends beyond Fast and Furious. The Benghazi story, when it is fully told, will detail the movement of arms from us, to Libyan based affiliates of al Qaeda, and across the northern coast of African to al Qaeda affiliates in Syria responsible for killing other Muslims, Christians and Christian clerics, occasional beheadings, the bizarre scene of man taking a bite out of another man's heart, and the rest.

There is more. Frankly, there is too much more. That Goodlatte believes that the basis for impeaching Obama does not exist leaves me with a dread sense that the one truly representative body of our federal government is captained by the ignorant or the damned.


Why Having Two White Parents That Remain Together Through Life Is Sucky

The fact is, having one black parent is good enough to make Barack Obama America's first "black president."  So what that he didn't know his father?  So what that his father bedded and illegally wedded Barack's mother?  So what that his father's influence in his life is an after the fact construct for a book ghost written for a future president by a past domestic terrorist?  If a person of the general incompetence and sloth of Barack Obama had sought the presidency but had brought to it the pedigree of two Caucasian parents, Hillary Clinton would have been the Democratic nominee in 2008.  So, how is it that having a black father that one really never knew is better than having two Caucasian parents?

Because the guy with one black parent he never knew can get away with anything, because the danger is constantly present for his political opponents that confronting the man will be made to be the stuff of racial intimidation.

The Attorney General of the United States told us that, as to matters of race, we are a nation of cowards.  No.  Not being hyperbolic here, the words were "a nation of cowards."

Well, I suppose I think he's right.  We all knew the dangers associated with targeting a man with dark skin for public chastisement and political excoriation as soon as Clarence Thomas uttered the words "high tech lynching of a uppity black man."

So what else explains the refusal of John Boehner to institute impeachment proceedings against Obama?

Is it that Barack Obama has not committed acts justifying impeachment?

No.  Without effort, sitting here at my computer, I can identify a dozen or more grounds on which impeachment is justified.  Remember that among the key articles of impeachment against Richard M. Nixon was the abuse of using the IRS against political opponents.  This Administration's abuse of Tea Party and conservative organizations through the IRS is just the same kind of political abuse that warranted the article of impeachment against Nixon.  The naked criminality of destroying and "losing" the hard drives of seven involved IRS computers is self-evident.

Is it that the Republicans in the House would be committing electoral suicide in a year they had hoped to gain House seats, and perhaps control of the Senate?

Well now, that's entirely possible.  It is possible that by doing their constitutionally sworn duty they would be risking electoral success in November.  I guess I think that it is that very concern that proves the truth of Holder's race cowardice indictment of the Nation.  If the things done by Obama had been done by a man with two Caucasian parents, rather than just one, there is little doubt that severe consequences, likely impeachment, would have long since followed.

The thing is, and I do not know the answer to this question, if the standing of the Congress is so very low while it has done so very little to protect this Nation from this Administration, will it cause further damage to impeach the President, or, instead, will impeachment actions by the House lead the People to rise in hope that this long national nightmare is over?

We won't know.

As much as Obama likely despises Clarence Thomas because of the Justice's principled constitutional conservatism, there's little doubt in my mind that the House would have to be prepared to deal with an echo of Thomas' "high tech lynching of an uppity black man" allegation.  And, that, my friends, is why I think that Holder, like a broken clock, is proved right.

No principled constitutionalist of my ken thinks that this President cannot be properly made the subject of Articles of Impeachment.  Without regard to the wisdom of any particular effort at impeachment, there is no question that the House has the power to impeach, a power sufficiently broad that it might impeach a President for putting mayo on a Reuben.  So we are left to the COWARDICE of the Republicans in the House, who, for fear that they might be portrayed as conducting a "high tech lynching" of Obama, are refusing to do their duty.

Thursday, July 10, 2014

Stolen Page from the Obama Diary, July 9, 2014


Barack Obama's Diary, Wednesday, July 9, 2014:


I visited the border today. 

Of course, when I say I visited the border today, I don't mean that I gave in to pressure from those idiot Republicans and actually went to the physical border of the United States with Mexico.

What I did was, I visited a State that shares a border with Mexico.

I am very concerned about the humanitarian crises the influx of unaccompanied children represents. The dangers of their travel, the crimes committed against them, the diseases to which they have been exposed. That's why I visited the border today.

Of course, when I say I visited the border today because of my compassionate concern for those poor little stateless waifs, I don't mean that I gave in to pressure from those idiot Republicans and actually visited with those poor little stateless waifs.

What I did was attend some very important meetings with folks who also care very deeply about this humanitarian crisis. In fact, because they care so deeply about the humanitarian crisis, and trust my vast knowledge, skills and wisdom, they gave me large amounts of money.

Of course, when I say they gave me large amounts of money because they trust my knowledge, skills and wisdom, I don't mean that I've given in to pressure from those idiot Republicans and am diverting the funds they donated to aid the poor stateless waifs.

No. That money, it goes to insure the election of more great Americans of compassionate heart, like me, like Harry Reid, like Nancy Pelosi.

I visited the border today.

Monday, July 7, 2014

DREAM Act Birds Come Home to Roost

This post is not on the question of whether America is better off or worse for its sieve-like southern border.  It's not about whether all persons not lawfully in the US should be rounded up and deported.  It is about the dangerous condition in which our Republican House of Representatives has left the Nation by ignoring President Obama's decision to usurp the exclusive power of the Congress to provide a uniform law of naturalization.  Obama's imposition of the provisions of the DREAM Act -- by executive order because Congress did not approve it -- should have resulted in impeachment.  Instead, Congress sits idly by, leaving the States to the various depredations that will follow.  This blog post is about one of those depredations:  a decision by the US Court of Appeals for the Ninth Circuit holding that Arizona is likely violating the equal protection rights of individuals who have obtained deferred action under Obama's unconstitutional Executive Order.

In an appeal from a trial court's decision refusing to interfere in Arizona's enforcement of its motor vehicle licensing laws, the US Court of Appeals for the 9th Circuit has concluded that Governor Jan Brewer and the State of Arizona are likely violating the equal protection rights of individuals granted deferred action status under Obama's executive adoption (i.e., unconstitutional adoption) of the DREAM Act.

The equal protection violation results from the State's decision, based on the Governor's Executive Order, not to issue motor vehicle operator's permits to individuals whose proof of legal status in the US is based on the documents evidencing the federal government's grant of deferred action.  The State of Arizona does grant motor vehicle operator's licenses to individuals whose proof of legal status consists of documents showing the grant of deferred status under other (congressionally adopted) (constitutional) deferred action programs.

Set aside the question of what to do about unregulated migration into the United States.  Set aside the dispute over so-called anchor babies.  Set aside the question of whether the States should all kowtow to federal standards for their issuance of motor vehicle operator's permits (a peculiarly State function).

Here we have a President that has decided to act like Congress has passed a law that it hasn't.  There is no law on the book adopting the proposed terms of the DREAM Act.  If Congress chose to enact the DREAM Act, the Constitution's terms make Congress's judgment about naturalization beyond the purview of the President.  Congress hasn't enacted the DREAM Act.

Instead, Obama, whose behavior as unitary Executive/Legislative/Judiciary of the United States, has simply issued an executive order directing that ICE and DHS act as though Congress had enacted the DREAM Act.

From that unconstitutional act, we proceed to the preposterous decision of the 9th Circuit.  Arizona refuses to pretend that Obama's Executive Order has the force and effect of federal law.  So it concludes for itself that the use of documents proving deferred action under the unadopted DREAM Act does not satisfy Arizona's standards for proof of lawful presence in the United States.  On  this determination, the 9th Circuit bases its conclusion that Arizona likely violates the Equal Protection rights of those residing in Arizona that have obtained deferred action status from this Administration.

Did you follow all that?

Summed up:  Obama imposed an executive order (unconstitutionally) in an area of federal law and policy that belongs exclusively to Congress (naturalization).  Arizona, which, like each State, has the public health and safety justification to impose licensing requirements and does so, has established a standard for proving lawful presence in the US that does NOT accept the exercise in unconstitutional power undertaken by Obama.  The 9th Circuit then concludes, not that Obama is acting illegally and Arizona is not bound by his unconstitutional actions, but that Arizona is likely violating the rights of those whose legal presence in the United States has not been obtained by Act of Congress.

We are three days passed Independence Day.  I hope, nonetheless, that you will recognize that usurpation of legislative authority by King George III constituted the principal basis for our rebellion against English tyranny.  Obama's tyranny is no less offensive to the republican self-government to which our Declaration aims, our State Constitutions frame, and our National Constitution commits.