I have a DREAM …

In 2001 Representative Luis Vicente Gutiérrez (D-IL) drafted the Immigrant Children's Educational Advancement and Dropout Prevention Act which would have prevented the deportation of illegal immigrants who had been brought to the United States before their 16th birthday and who were enrolled in primary, secondary, or college classes, or who were under the age of 25 and of “good moral character” – a trait undefined by the bill.

The Gutiérrez bill was scrapped in favor of a more limited Senate bill introduced later in 2001 by Senators Dick Durbin (D-IL) and Orrin Hatch (R-UT.) It was titled, no doubt after laborious hours of searching for a cutesy acronym, the Development, Relief, and Education for Alien Minors Act (DREAM). The bill subsequently went through numerous re-writes and amendments to placate constituencies with Senate and House versions. So far it has not made it into law.

Critics say the DREAM Act rewards and encourages illegal immigration, consumes state and federal education dollars on illegals, discriminates against legal immigrants whose children were born in the US and don’t therefore qualify for the education subsidies received by illegals, that children as old as 16 have been acculturated to their home country making the cut-off age too old, gang members could slip through the Act’s provisions, drop-out fraud would be difficult for deportation authorities to detect, and the Act is tantamount to amnesty.

Supporters of the bill – mostly Democrat politicians who benefit from illegal Hispanic voting – simply deny the critics’ arguments as if denying them dismisses their merit.

Then on June 15, 2012, with his polling among Hispanics legals and illegals sagging, Obama announced that his administration would hereafter and unilaterally cease the deportation of illegals who met the criteria of the DREAM Act, essentially enacting the DREAM bill on his own authority, by-passing the legislative role of Congress. It was an unambiguous display of naked power by a President whose allegiance to the US Constitution has been suspect since his inauguration.

Was there an outburst in the halls of Congress regarding this preemption of its legislative role? No. Did Americans take to the streets and protest that “No one is above the law!” as they did when Nixon defied constitutional authority during the Watergate crisis? No. Did the talking heads of the MSM and editorial pundits put their constitutional knowledge to work, complaining that the arbitrary acts of a monarch were hazardous to our private pursuit of liberty and extrapolating Obama’s lawlessness to future generations of Presidents who, allowed to make the same symbolically obscene hand gestures toward the American people by overriding laws, would become little more than ancient Persian tyrants? No.

Obama got away with it. Maybe he’s evolving, as he claimed his view on the same-sex marriage “evolved,” because in speaking to Univision on March 28, 2011, he said:

With respect to the notion that I can just suspend deportations (of immigrants brought here illegally as children) through executive order, that's just not the case, because there are laws on the books that Congress has passed.

Speaking on May 1, 2011 to the United We Dream (UWD), Education Not Deportation Campaign, an association of illegal immigrant youths, Karen Maldonado rose from the audience and challenged Obama to stop the deportations. His answer:

America is a nation of laws, which means I, as the President, am obligated to enforce the law. I don’t have a choice about that. That’s part of my job. … There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply, through executive order, ignore those congressional mandates would not conform with my appropriate role as President.

Then, speaking to the radical activist Latino group, National Council of La Raza (The Race), whose avowed purpose is to reconquer (La Reconquista) American territory and ethnically purge it of Europeans, Obama told them last July 25, 2011:

Now, I know some people want me to bypass Congress and change the laws on my own. ... But that's not how our system works. That's not how our democracy functions. That's not how our Constitution is written.

Americans have the governmental architecture willed to us by the Founders because those men knew there would be fundamental disagreements among elected representatives over policy – even among men and women of good faith – and those differences were to be reconciled in debate, not steamrolled over by a majority party or the President,. Differences were to be resolved in deference to our mutual allegiance to constitutional order – a deference that Obama is willing to forego when his reelection is at risk.

He thus rationalized his about-face by saying Congress didn't act (i.e. in passing the DREAM Act, something it’s been unable to do since first proposed a dozen years ago.) Apparently King Obama doesn’t considered settled immigration law sufficient to prevent his taking matters into his own hands and making Congress irrelevant as of June 15 by his de facto creation of the DREAM Act.

Article II, Section 3 of the US Constitution says:

… [The President] … shall take Care that the Laws be faithfully executed …

Wow! “Faithfully executed.” I guess that eliminates picking and choosing the ones you want to enforce as the British kings did. I guess that eliminates creating law out of bills that have not been passed by the elected representatives of the people.

Obama’s June 15 edict allows some 800,000 people to receive deferred action from deportation, among them Israel Velazquez, a 16-year-old who was brought to this country by illegal parents when he was two years old. Now living in Asheboro, NC and educated by gringo taxpayers, he told reporters of the immigration checkpoints he had to circumvent while driving, often making an ordinary trip to town a challenge. But now – now Obama has given him a bright future and …

… the opportunity to go through university without paying very much. It gives me the opportunity to work, to have a better career for myself, and it gives me the opportunity that my parents didn't have.

Well, maybe Israel won’t have to pay much for his education at the university. I’m sure the fiscal custodians of that bastion of liberalism will find a scholarship for him while the state’s local kids and taxpayers foot the bill for their education and Israel’s.

The day that Obama made his outrageous declaration that Homeland Security would no longer deport students who met Obama’s criteria (even though he filched them from the DREAM Act), John Yoo wrote in National Review Online:

Imagine the precedent this claim would create. President Romney could lower tax rates simply by saying he will not use enforcement resources to prosecute anyone who refuses to pay capital-gains tax. He could repeal ObamaCare simply by refusing to fine or prosecute anyone who violates it.

So what we have here is a president who is refusing to carry out federal law simply because he disagrees with Congress’s policy choices.

And yet that is precisely what Obama did after the recent Supreme Court ruling gave Arizona police the right to ask the occupants of a vehicle for identification.

After the Supreme Court’s decision, the Obama administration announced that it is suspending existing agreements with Arizona police over enforcement of federal immigration laws and that it had issued a directive telling federal authorities to decline calls from Arizona police to Homeland Security reporting illegal immigrants.

Homeland officials told reporters they expected the number of incoming calls from Arizona police to increase – presumably indicating a rise in illegal immigration – but Homeland Security wouldn’t be answering the phone, increasing staff to handle call volume, or putting more boots on the ground in Arizona. Why don’t we just run ads in the Mexican dailies “Come on over, boys, there’s nobody going to stop you here!”

This is obviously a smack down of Republican Governor Jan Brewer whose well-publicized photo of her in the presidential face, her forefinger pointing at him while both stood on the Arizona tarmac. Arizona has been under assault in Mexican gun violence and private property trespass crimes, yet when it tried to enforce federal immigration law, Obama and his laughable excuse for an Attorney General spent all of their energy going to court to assert that border defense and immigration enforcement was a federal responsibility even when the feds ignored enforcing it.

What Brewer’s attempt to be the people’s Governor accomplished, it seems, is to have gotten Arizona added to the Obama grudge file while writing off its electoral votes for the Obama reelection campaign – unless he can get enough illegal voters in the state by November 6.

This is the same tactic that Obama and Napolitano pulled on Texas when it asked for help along the Texas-Mexico border. According to the GAO, the federal government can actually prevent or stop illegal entries into the US along only 129 miles of the 1,954-mile-long US border with Mexico. That’s less than 7%. Yet in May of last year Obama reeked sarcasm as he addressed a crowd in El Paso, across the border from Juarez, one of Mexico’s most violent cities, to stump for his passage of the DREAM Act.

So, we have gone above and beyond what was requested by the very Republicans who said they supported broader reform as long as we got serious about enforcement, all the stuff they asked for, we've done. But even though we’ve answered these concerns, I've got to say, I suspect there's still going to be some who are trying to move the goals posts on us, one more time.

You know, they said we needed to triple the border patrol. Well, now they're going to say we need to quadruple the border patrol. Or they'll want a higher fence. Maybe they'll need a moat. Maybe they'll want alligators in the moat. They'll never be satisfied.

Yes they’ll be satisfied, Obama, when you grow up and begin acting like a leader rather than an over-indulged brat who was given opportunities you didn’t deserve and thus grew old without growing up. One of life’s tough lessons is that you don’t always get your way even if you’re President, you’re not always right, you’re not the smartest person in the room every time. Border governors know something you don’t because you never governed anything before hoodwinking a majority of people into elevating you into the highest office of the land despite your astonishing lack of qualifications. Governors know that borders must be secure before any immigration policy can be effective. Congress figured that out long before you began to briefly warm one of its Senate benches. This partially explains why the DREAM Act has gone nowhere. How many times do we have to grant reprieve to illegals before we admit people are slipping over our southern borders faster than we can decide what to do with them – like the 13 million illegals already here, which some think could be as high as 20 million?

Suppose a person broke into someone’s home, Obama, and illegally lived there with minor children for years but was otherwise a model citizen in obeying the laws, supporting the community, and caring for his neighbors. Would that make the initial crime of breaking and entering less relevant? Would their squatter’s rights continue under protection of the law? Should the legal landlord have any say in recovering his property, especially if he has legal renters or buyers standing in line? When people illegally enter and live in this country, it isn’t free. The fact that they make an economic or social contribution to the country is irrelevant. At a minimum, they should leave and go to the end of the line in their home country to be fair to the people who are lawfully waiting to enter the US.

To me that would be a reasonable solution. It doesn’t necessarily mean that one’s place in line determines who gets the opportunity to immigrate. We could always set qualifications, deferring to those who bring skill sets and personal qualities that Americans want in new citizens. But at least it would be our choice, not the immigrant’s.

Article Four, Section Four of the Constitution says: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion …” It doesn’t say a military invasion. It doesn’t say an armed invasion. It simply says “invasion” – to intrude, encroach, infringe without permission.

Writing in The National Review several years ago, Andrew McCarthy described it as well as I’ve seen:

In adopting the Constitution, in giving their consent to our social contract, the sovereign states agreed to cede some of their authority in exchange for one overriding benefit. It was not to have an overseer to monitor our salt intake, design our light bulbs, prepare for our retirement, manage our medical treatments, or mandate our purchases. It was to provide for our security. It was to repel invasion by aliens who challenged our sovereign authority to set the conditions of their presence on our soil.

For that reason, border security has always been the highest prerogative of sovereignty. Immune from judicial interference, it answers to no warrant requirement. At the border, the federal government does not need probable cause – or any cause at all – to inquire into a person’s citizenship, immigration status, or purpose for attempting to enter our country. Agents can detain immigrants and citizens alike. They can perform bodily searches. They can go through every inch of a would-be entrant’s belongings, read his mail, and scrutinize the contents of his computer. A person subjected to this treatment may find it degrading or unfair, but the courts have nothing to say about it. At stake, after all, is the irreducible core of a sovereign people’s power to protect themselves from intruders.

For the several states along the border with Mexico, however, the federal government has surrendered its power … and thus its legitimacy.

Obama and the Judgment of History

One year into his presidential term Obama told Diane Sawyer in an ABC news interview that he’d rather be a good one-term president than a mediocre two-term president.

Really?

Does anyone really expect that a guy who spent hundreds of millions of dollars to win a position for which he was totally unqualified would take counsel of his modesty and admit that the nation’s commonweal would be served best by his foregoing a second term? How can anyone believe that barnyard refuse? Obama’s first term achievements include an unpopular healthcare law that 8% more people want repealed than want it retained; an economy that’s underwater with record deficits, debt, and an anemic 1.9% growth; unemployment that’s over 8% (if you don’t count the people who’ve quit looking or have taken part-time jobs, in which case it’s over 11%); a country on the wrong track according to 60% of Americans, and a job performance disapproval rating of over 48% … does that qualify for a mediocre first term? What hope for change would a second term offer? Yet, Obama wants four more years to complete his “unfinished project,” as he described his first term in a recent fundraiser. One can only guess and gasp at what four more years of this would look like – if there will be anything left to look at in 2016.

Gerald Ford, the only person to be both Vice President and President without being elected to either office, wanted more – election to a “second” term. History remembers him as the man who pardoned Richard Nixon whom Ford replaced in the Watergate Scandal. The country rewarded him with the shortest tenure of any President who didn’t die in office by choosing instead Jimmy Carter, whose fecklessness doomed him to a one-term presidency.

William Howard Taft, the 27th President, whose claim to fame was giving us the income tax, wanted a second term. But his predecessor, fellow Republican Teddy Roosevelt, was displeased with his protégé’s first term and ran against him for the Republican nomination. Failing to win the nomination, Roosevelt ran as a third party candidate, split the anti-Democrat vote, and thereby threw the election to Woodrow Wilson, who won with less than 42% of the vote. Wilson, formerly the president of Princeton University and the only President to hold a Ph.D., gave us modern political liberalism. He only narrowly won a second term during which he suffered a stroke that left him blind and paralyzed on his left side. His wife Edith was the de facto President for the remaining 18 months of his second term. Although legally allowed to run for additional terms, wiser heads knew he wasn’t physically up to it. Moreover, the country had its fill of Wilson’s policies and gave the Republicans a landslide victory in 1920, delivering to them the Congress and the White House.

Grover Cleveland is the only person to hold the presidency twice in non-consecutive terms. He was a one-term President, who lost to Benjamin Harrison, a one-term President who lost to Grover Cleveland, thus making Cleveland the 22nd and 24th President. Even with a second chance, Cleveland couldn’t quite get the “president” thing right and was tossed out again after only one term. Talk about rejection! Ulysses Grant, the 18th President, almost pulled off a “Grover Cleveland” by serving two consecutive terms, after which he lost to Rutherford B. Hayes, who voluntarily stepped down after one term. Grant’s name was put into the nomination process for a third non-consecutive term, but after 36 ballots in the 1880 Republican Convention, the nomination went to James Garfield – although barely so. Garfield became the 20th president and the second to be assassinated in office, six months into his first term.

James K. Polk, the 11th President, was the only other person – besides Rutherford Hayes – to promise to serve one term and keep his promise. Unlike Hayes, who was a terrible President, Polk had a very productive solitary term.

When the delegates to the Constitutional Convention met in Philadelphia in the summer of 1787 to create the document by which to govern the Republic, their initial proposal for the presidential term was a single seven-year term. Yet everyone in the room revered George Washington, who presided in silence over their Convention, and all knew he would likely be elected the first President. With Washington in mind, therefore, the delegates decided that the President should serve four year terms with no restriction on the number of terms.

Washington served two terms and declined in 1796 to seek a third. When he left office in 1797, he had served over eight years as Commander in Chief of the Continental Army and eight years as President of the new republic. He was 65 – an old man for that time – and he wished to retire in peace to his plantation home, Mount Vernon, where he would die two years later. His forbearance to serve only two terms imposed itself as the traditional limit on Washington’s 30 successors. Only eight were fortunate enough to win election twice, including Cleveland, thereby conforming to Washington’s tradition – that is, until the election of Franklin D. Roosevelt, a man unrestrained by the conceit of his indispensability and who held the presidency as a monarch, much like its current incumbent. FDR was elected four times and served a record 4,422 days in office before being stuck down three months into his fourth term with a cerebral hemorrhage while visiting his personal retreat in Warm Springs, Georgia with his paramour of almost 30 years, Lucy Mercer Rutherfurd. Eleanor Roosevelt was in Washington.

Of the 43 men who held the office of President before Obama, 12 served only one term and 13 served two terms, including Cleveland, whose terms were not consecutive, and Roosevelt, who served three and part of a fourth. Four died in office – William Harrison, Taylor, Harding, and Franklin Roosevelt – and four – Lincoln, Garfield, McKinley, and Kennedy – were assassinated while in office, two of whom were in their second term. Of the eight Vice Presidents who succeeded upon presidential deaths, four filled the remaining term of their successor and won one term on their own and four did not. Ford, who became President upon Nixon’s resignation, was never elected to the office. One could say, then, judging from historical statistics, that the chance of a second term is about 50%, if not less.

Harry Truman completed Roosevelt’s fourth term – almost four years of it – and won election for another four years. He was the last person who could have been elected to even more terms. But after losing the New Hampshire primary in 1952, he pulled out of the race for the Democrat nomination, which Adlai Stevenson won. During his presidential campaign, a woman reportedly called out to Stevenson, “You have the vote of every thinking person!” Stevenson allegedly replied, “That’s not enough, madam. We need a majority.” A Republican won the 1952 general election for President – Dwight Eisenhower.

The Republicans also won control of both houses of Congress in the mid-term elections following the death of Roosevelt, and they were determined that no future President would repeat his monarchical feat. As Republican Representative Ellsworth Buck put it, "Dictatorships are spawned by the repeated election of one man." The 22nd Amendment was passed, which said, inter alia:

No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.

Article V of the Constitution requires the legislatures of three-fourths of the states to ratify constitutional amendments. Since Truman was serving as the President, he was grandfathered in when the 22nd Amendment was ratified by the 36th of 48 states in February 1951.

During the House Judiciary Committee hearings for the Amendment, Representative Emanuel Celler, the ranking Committee Democrat, argued in favor of a different amendment which would allow Presidents to serve one six-year presidential term "with no right of reelection." The motion was defeated in Committee. Celler tried again when the vote went to the House floor and it was again defeated.

The idea of a single six-year term has been floated several times throughout the years but has oddly never gained traction. Yet Celler’s argument for it is sound:

It has always been natural for the incumbent president to have his eyes fixed on reelection, and all acts of the first term, directly or indirectly, in some measure are affected by the ambition for a second term.

Years earlier Republican Senator Elihu Root made a similar argument, relating his cabinet experiences first as President McKinley's Secretary of War and later the Secretary of State for President Theodore Roosevelt who followed McKinley’s assassination.

… the possibility of renomination and reelection of a President who is in office seriously interferes with the working of our governmental machinery during the last two years of his term [since] just about the time he gets to the point of highest efficiency, people in the Senate and in the House begin to figure how to try to beat him [and] you cannot separate the attempt to beat the individual from the attempt to make ineffective the operations of government which that individual is carrying on in accordance with his duty.

The outsized egos of modern-day presidents combine with the lure of a second term to produce perverse incentives in governing as Celler and Root observed. To win the presidency is an honor which only 44 men have accomplished in the 224-year history of the Republic. To be rejected for a second term after voters have seen the consequences of a first term is humiliating even though history has shown it happens slightly more than half the time. But look at any list of “best presidents” and there won’t be a one-termer on it.

In such a system, the motivation is to go all out during the first term and show your best shots so voters will be crying “More! More!” when it’s time for a second term. But again, the lessons of history do not bode well for second terms. A second term President is a lame duck on day one. Legacies almost won in the first term are often lost in the mismanagement of the second.

I haven’t the space to catalog every second-term fiasco, but consider these.

George Washington stumbled several times in his second term. For example, his Treasury Secretary, Alexander Hamilton, precipitated the Whiskey Rebellion in western Pennsylvania by imposing a war debt tax on grain sold in the form of whiskey. The Revolution had been partly fought over issues involving taxes and this one was keenly resented. When frontier negotiations with farmers failed, Washington called out the state militias and rode at the head of their column of 15,000 men to put down the tax protest. The symbolism was awful. The Father of the Country was behaving as an imperial bully against his own countrymen. Several men were sentenced to hang. Anxious to paint over the public relations disaster, Washington pardoned them. President Jefferson later repealed the tax.

Thomas Jefferson's Embargo Act of 1807, approved by Congress in his second term, is considered one of the worst presidential decisions ever made. The Napoleonic Wars in Europe were fully underway and Britain and France were at each other’s throats. To discourage trading with each other’s enemy, both countries passed laws that made merchant ships fair game for one country if they traded with the other – i.e. Britain or France. It was a Catch-22 for America. Even though our country had declared its neutrality, Jefferson responded with an embargo of his own that prevented American ships from trading with either country and prevented either country from shipping cargo to an American port. Europe had an unusually large food harvest in 1807 so the embargo hurt only the American side of trans-Atlantic trade. Shortages of English and European goods drove up domestic prices and Congress repealed the Act just as Jefferson was leaving office. His successor, James Madison, was left with a time bomb that would lead to the War of 1812, consuming most of Madison’s second term.

Andrew Jackson’s second term was marred by the Nullification Crisis, which could have plunged the country into civil war when South Carolina and the federal government faced off over a burdensome tariff. Jackson’s second term was further marred by the relocation of Cherokees in the Trail of Tears tragedy. Jackson’s longstanding hatred of banks, especially the Bank of the United States, led to a severe economic recession in 1837 as he was leaving office.

Presidential second-term disasters in the modern era would certainly recall Woodrow Wilson beginning his second term by breaking his promise not to thrust Americans into the European war that would come to be known as World War I. His failure to engage Republicans in his Treaty of Versailles and the creation of the League of Nations assured their defeat and the loss of Congress and the White House. Wilson’s second-term policies created the Depression of 1920 with 12% unemployment. The stress of his second-term miscalculations produced the catastrophic stroke which incapacitated him for the remainder of his term.

Franklin Roosevelt’s second term was caricatured by his Supreme Court packing scheme which backfired and cost him dearly in the loss of congressional support. His vain conceit prevented him from learning from the experience, and his attempt to punish uncooperative Democrats in the 1938 elections guaranteed he wouldn’t get anything through Congress until his third term, which saw America dragged into yet another world war.

After completing Roosevelt’s fourth term, Truman defeated Tom Dewey in a surprise upset election, winning his “second” term but his first election. During his elected term he became embroiled in the Korean War, fired a popular but sassy General McArthur, and rejected a peace offer that would have put the North and South Korean demarcation line where it ultimately ended up at war’s end, years and many pointless casualties later. His popularity plunging, Truman squandered his chances for a second elected term.

The politically popular general who had won the war in Europe, Dwight Eisenhower, followed Truman in office. During his first term, 75% of his legislative requests passed in Congress. During his second term only 37% passed. He sparked controversy in school integration, was surprised by the Soviet Sputnik launching, and suffered the embarrassment of having a U-2 spy plane shot down over Soviet territory while declaring he knew nothing of the U-2 missions.

In second terms, Lyndon Johnson got the country stuck in a no-win war in Viet Nam, Richard Nixon won a landslide second-term victory that was undone by a petty criminal break-in, forcing him to become the only President to resign, Reagan became ensnared in the Iran-Contra scandal, and Clinton became known for sex scandals, most notably the Monica Lewinsky affair, whose torrid details sent parents scurrying to shut off televisions before their children’s tender ears were exposed to X-rated reporting.

Is there a common thread in the second-term curse highlighted above? Perhaps there are several. The chickens of the first term often come home to roost in the second. Presidents usually play all of the face cards they hold in the first term and hold weak hands in the second. The conceit and hubris that comes from believing the success of one’s reelection baloney indulges a lack of caution and encourages overreach in the second term. Key staffers leave in the second term and are replaced by second-stringers who can’t manage a boss who believes he walks on water. The President’s party falls out of line as potential contenders for the throne begin to assert their independence from him. And a pall of lame duckness settles over the administration, sucking all creative energy out of its second term, especially in the second half.

Look at each of the 13 presidents who had second terms and you’ll see some if not most of these footprints in their fecklessness. They should have quit when they were ahead.

Obama has spent four years showing anyone with at least the attention span of an amoeba that he is the most radical politician in the history of the Republic to have held the office of President. Is there any reason to believe that, unrestrained by the carrot of a second term, he will be less so if given another four years? Is it realistic to believe his amateurish first term was the chrysalis of hope and change which will shatter the unbroken evidence of 13 ineffectual second terms?

Anyone want to buy the Golden Gate Bridge? I can give you a good price.

RobertsCare – The Continuing Saga

(If you haven’t done so, please read last week’s blog – RobertsCare – which is Part I of this post.)

Rumors leaking out of the Supreme Court suggest Roberts was aligned with Kennedy and the conservative wing of the Court after hearing arguments and had decided the mandate was unconstitutional. Sometime toward late April, he went over to the Dark Side for reasons only he knows. Joining the liberal wing, he had an epiphany that the mandate could be constitutional under the taxing power of Congress. For a month his colleagues on the right tried to woo him back into the fold – to no avail.

The outnumbered conservatives plus Kennedy, whose traditional “swing vote” status had been usurped by Roberts, went ballistic in their dissent:

The government and those who support its position on this point make the remarkable argument that [the mandate] is not a tax for purposes of the Anti-Injunction Act, but is a tax for constitutional purposes. That carries verbal wizardry too far, deep into the forbidden land of the sophists.

If you’re scratching your head over the squirrely tax logic of RobertsCare, the decision of its provisional author concluded that the federal government can’t make people buy health insurance, but it can impose a tax on people without health insurance. And what a tax it is – the largest in history! It will cost Americans $800 billion annually, according to the Joint Committee on Taxation. Of the 21 new or enlarged taxes in the Act, seven fall on people making under $200,000. Notwithstanding Obama’s “promise” that he would not raise taxes on the middle class – “not one dime” was what he promised – ObamaCare is going to cost Americans $2.6 trillion over the next decade. That’ a lot of dimes.

But that’s not the most troubling aspect of the “mandate wolf” in “tax clothing.” Eighteen times in the ObamaCare Act it calls the consequence of failing to have health insurance a penalty, not a tax. Roberts held the position that, regardless of what Congress called it, it operates like a tax. The distinction is important because a tax is an “exaction” whose purpose is to raise revenue. The purpose of a penalty is to compel a desired response – the “or else” that accompanies policing power – and in the hands of the feds, such penalties are a violation of the 10th Amendment. Penalties are designed to make compliance more attractive to a person than non-compliance – i.e. “the penalty fits the crime.” But Roberts argued that the monetary consequence for not buying or having health insurance is so much less than the actual cost of the insurance that it can’t be a penalty; therefore, it must be a tax within the taxing power of Congress. At least that was Roberts’ understanding in his binary world and he was sticking to it.

One might ask what happens if non-compliance is so widespread – a real likelihood – that Congress raises the cost of non-compliance? At which point does the tax then become a punitive penalty violating the 10th Amendment? RobertsCare has laid the groundwork for Congress to use taxes to motivate citizen behavior, and yet if Congress crosses some unspecified dividing line from taxing to penalizing – a no-no for the feds – is Roberts going to review every mandate tax increase and every other behavior-modifying tax to determine if it’s really a penalty and thus illegal?

Here’s another question. Article I, Section 2, Clause 3 of the Constitution says:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers …

Note the word “apportioned” because Article I, Section 9, Clause 4 further says:

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

In other words, direct taxes are only legal if they are apportioned among the states according to population. A tax is “direct” if it is imposed on a person or his property, whereas an “indirect tax” is imposed on transactions, like a sale or transfer. The latter are often called excise taxes.

Direct taxes were abhorrent to 18th century Americans. They were arbitrary, discriminatory, “head taxes” that were unavoidable. The justification for their levy was simply that a person existed – an inescapable fact. Property could also be direct-taxed because it too existed and couldn’t escape its existence. If the tax was too onerous to pay, property would be expropriated. In contrast, an indirect tax could be avoided by avoiding the transaction on which it was based. Understanding the abuses of direct taxes, the authors of the Constitution severely limited Congress’ ability to impose them, specifying that direct taxes had to be apportioned by population. For those who live in Palm Beach County Florida, land of hanging chads, that means everyone pays the same tax.

So how does Congress get away with its discriminatory taxing of income (property)? It’s called the 16th Amendment to the Constitution, which established the income tax – an unapportioned tax which fell on about 2% of the population at the time. No other direct taxing is permitted by our current Constitution. Taxes on cigarettes, alcohol, and sales taxes are indirect excise taxes that can be avoided by not consuming these and other products.

But the “mandate tax” is not avoidable. You pay it or buy a product you don’t want. Either way, you’re out money and can’t escape payment in one form or another. If you haven’t purchased insurance, you notify the government on your income tax filing and the tax is withheld from any refund due from the IRS. If you have purchased insurance, you owe nothing. So suppose all of the citizens of Georgia have health insurance, but those of Ohio don’t. Ohio citizens pay the tax and Georgia citizens don’t. That looks like a direct tax to me. It is not apportioned by population so it’s an illegal direct tax.

There’s one other characteristic the strange tax invented by RobertsCare: it operates like no other tax I know. If you owe tax to a state or the federal government, they have the right to be paid. It’s a criminal act not to pay. Liens can be filed against property or property can be seized, fines and interest can be levied, jail terms can be meted out. Not so with the “mandate tax.” No liens, no levies, no wage garnishments are allowed in the ObamaCare Act. The only thing the government can do is withhold taxes you overpaid. So, don’t overpay your taxes. What’s the government going to do?

Therefore, is the Roberts “tax” really a tax? Taxes raise revenue. If everyone complied with the mandate, the revenue raised by the RobertsCare tax would be zero. Sounds like a federal penalty to me. Direct federal tax or federal penalty … whatever … I’m no lawyer but both are illegal under the Constitution as I read it.

Because the mandate survived the Court’s opinion, the severability issue never became germane. Severability is a complex constitutional issue going all the way back to Marbury in which the Chief Justice struck down part but not all of the Judiciary Act of 1789. News leaking out after the Court’s ObamaCare decision indicates there was considerable wrangling over striking down the entire law, which had no severability provision (probably by design.) This could have been a disaster because ObamaCare is so interconnected (District Judge Vinson likened it to a watch), and parts of it have already activated and are popular – guaranteed issue for example. Striking down the mandate and leaving the rest of ObamaCare intact would be tantamount to a line item veto by the Court. Some of the Court leaks say this is why Roberts initially supported striking down the mandate, but unable to reconcile the warring factions concerning severability, he joined the liberals in a convoluted search to find a way to save the mandate under the taxing provision of the enumerated powers.

With severability a non-issue, the last thing the Court had to decide was the coercive expansion of Medicaid under ObamaCare. Starting in 2014 states were required to expand Medicaid to all non-elderly individuals with family incomes below 138% of the federal poverty level, which is currently $23,050 for a family of four. ObamaCare picks up the cost of expanded benefits (but not administration cost) for the first three years. States bear all costs for administration, which will be significant since participation is expected to grow by 50%. Beginning in 2017 states must begin to assume a share of the expanded benefit costs. The state cost-sharing will max out at 10% in 2020.

States are also required to set up insurance exchanges that will allow people within 100% to 400% of the federal poverty line to buy subsidized insurance.

If the states don’t play, they pay – all Medicaid funding to the state will be terminated. Wow! That’s a big “or else.” And it’s also an illegal use of police power.

Seven of the justices concurred that the expansion of Medicaid was a new program – not an extension of current Medicaid programs. The same seven justices ruled against coercing adoption of the insurance exchanges. According to Roberts, the new program puts a “gun to the head” of the states unless participation is voluntary, not coerced by the threat of losing Medicaid funds. The ObamaCare threat to withdraw all Medicaid support would cause financial instability among the states, the Court ruled, and was an assault against state sovereignty, which the Court is now on record as supporting.

On balance, allowing the mandate to survive by calling it a tax is a lousy decision. Instead of using the Commerce Clause to modify behavior, the ever-growing imperialism of Congress can now accomplish the same thing with a tax. The feds want you to buy a certain type car, put solar panels on your roof, lose weight? Pass a non-compliance tax.

But, Roberts argues, you can throw the bums out for raising your taxes. Well, we can also throw out the bums for abusing the Commerce Clause, but we haven’t. Lincoln said people get the kind of government they deserve. And an indifferent electorate has sown the wind and reaped the congressional whirlwind most of my life. It gets worse each year. Currently only half of the income-earners pay taxes. The other half, who happen to vote, aren’t going to get their panties in a wad over Congress’ taxing power. When a majority of taxes are paid by an ever-shrinking minority, when do taxes cease to be a revenue-raising device and become instead a success penalty – an instrument of class envy, which this president has used as no other predecessor has?

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

"It is not our job," Roberts wrote, "to protect the people from the consequences of their political choices"? True enough. But it is the Court's job to defend the liberty of the country’s citizens when the political leaders exceed the limitations imposed by the Constitution. It’s not the Court’s job to strain at a gnat so, as Roberts asserted, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” The liberal activist judges in the federal court system don’t hold that view. Contrary to the Roberts sophistry, it’s not the Court’s job to ignore “the most natural interpretation of the mandate,” which the conservative dissenters chose, in search of a “fairly possible” interpretation, which the activists joined by Roberts chose. ObamaCare repeatedly called the consequence of not buying insurance a penalty. By what rationale can the Court ignore what its authors claimed they were doing and call it something else?

As I have repeatedly said in previous blogs, political society in America is made up of makers and takers. Mitt Romney may not be the breathless dream candidate the makers had hoped for. But in 2012, Romney is not the central issue of the election. The 2012 election is a referendum on a man with no record in 2008 who has a record in 2012. It’s a referendum to give him four more years of implementing his remaking of America, as he has done, or to take a new direction. So, in just four months the electorate will cast its vote for Obama or against Obama – more so than it will choose one candidate over the other.

Obama’s political forbearers gave us Social Security, Medicare, and Medicaid, each of which has blown through the projected financial burden they laid on backs of productive society and they now threaten to overtake society’s ability to create wealth. According to the CBO, the burden of ObamaCare will dwarf these prior programs.

The 2,700 pages of the ObamaCare bill have now morphed into 13,000 pages of regulations (at last count), 180 new bureaucratic agencies staffed by people with IQs hovering around room temperature, 16,500 new IRS agents to harass private citizens and meddle in their affairs, and a massive transfer of power from an elected Congress to an unelected Secretary of Health and Human Services and her flying monkeys who will control one-seventh of our economy. Moreover, it establishes the Independent Payment Advisory Board, which will make decisions to ration care that are not reviewable by courts and are beyond the control of our elected Congress. There will be Medicare cuts, mandates for affirmative action in medical and dental schools, interference in the way doctors practice medicine, and restrictions on religious freedom, which the Catholic Church has already experienced.

And you thought you and your grandchildren were free citizens living under a democratically-elected government? "The nearest thing to eternal life we will ever see on this earth is a government program," said Ronald Reagan. And the last thing a government program is designed to be is accountable to the people who run this country, the Framers said, through elected representatives.

If Obama is ousted this fall, the new president can refuse to enforce the ObamaCare mandate tax by executive order. If a Republican majority is elected in both houses of Congress, they can repeal all or parts of ObamaCare in budget reconciliation with a simple majority – which defeats Senate Democrats’ ability to filibuster.

Two weeks ago we celebrated the 236th anniversary of our forefathers’ throwing off the yoke of an oppressive king and his administration whose agents in this country were a constant reminder that our forefathers were not truly free. They were as free as their overlords would tolerate. I have lived through the administrations of 13 presidents. None has frightened my sense of personal freedom and well-being as the incumbent president. So I’ll close with this warning from Ronald Reagan:

Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children's children what it was once like in the United States where men were free.

Exercise your freedom. Vote on November 6.

RobertsCare

When the US Constitution was drafted in the summer of 1787, it was written for a nation of farmers and shop keepers. They would have to be convinced that it should be ratified by each state’s ratification convention. It was, therefore, written as a simple straightforward explanation of how the proposed central government would work – something poorly-educated farmers, merchants, and shop keepers could comprehend. The proponents argued and assured a suspicious populace that the Constitution established a federal system – i.e. one in which the sovereignty of the states and their citizens would coexist alongside the new national government whose powers were explicitly enumerated. Indeed, in Federalist 45 James Madison wrote:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

In the first two decades of the young Republic, the Supreme Court was about as busy as the Maytag repairman. But by hearing the 1803 case of Marbury v. Madison, the Court asserted it had the authority under the Constitution to review the legality of the acts of Congress, and with that, the interpretation of the meaning of this “farmer’s guide to the operation of government” has become more complex with each generation.

The Supreme and inferior courts of each generation have discovered new rights in nuanced interpretations of the document’s simple and straightforward provisions, such as the 1973 Roe v. Wade, which legitimized abortion under the Due Process provisions of the 14th Amendment of 1868 – a right that, lo and behold, had been hiding there for 105 years before its discovery by Justice Harry Blackmun. Moreover, the insights of the jurists of one generation could be found flawed by those of a later generation, such as the 1896 Plessy v. Ferguson decision, which upheld the constitutionality of state racial segregation laws under the “separate but equal” doctrine, only to be found unconstitutional in the 1954 Brown v. Board of Education.

Some Supreme Court decisions have been positively hilarious. In the infamous 1942 case of Wickard v. Filburn Farmer Filburn, planted and harvested more wheat than President Roosevelt’s overreaching New Deal Agricultural Adjustment Act of 1938 allowed. Roosevelt wanted to limit free markets in order to drive up the price of wheat during the depression. When his transgression was discovered, Farmer Filburn was fined. He claimed he raised the excess wheat to feed to his livestock, not to sell it – a fact not disputed by the federal government. Thinking he was a free citizen with the right to grow grain to feed his chickens and cows, Filburn appealed to Roosevelt’s Supreme Court. Bad mistake. The Court told Farmer Filburn that if he hadn’t grown his surplus feed grain, he would have had to buy grain on the market to feed his animals. And if every farmer did what Farmer Filburn had done, why, the demand and the price for wheat would go down! While there was no proof that a nationwide black market in feed grain existed, nevertheless Farmer Filburn stood guilty as charged because his actions could have had “substantial affect” on the government’s regulation of interstate wheat sales – even though his additional production for animal feed was modest to any reasonable observer. Thus the Court was on record for finding a man guilty who could have made something happen that didn’t happen.

John Roberts was therefore in good company last Thursday when he delivered the tortured logic of the majority in NFIB v. Sebelius commonly referred to as the ObamaCare case.

Let’s begin at the beginning – always a good place to start.

The first clause of Article I, Section 7 of the Constitution, also known as the Origination Clause, explicitly says:

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

There’s a reason for this. This country had its founding in a rebellion against taxes. Thus the Founders wanted to make sure that the origination of taxes, never popular with those who must pay them, occurred in the House of Representatives whose members face the voters every two years, making them much more accountable than the Senate – which was originally elected by state legislatures and served for longer, six-year terms.

Oops. The ObamaCare bill originated in the Senate, not the House, and was largely the work of Sen. Max Baucus. Only the bill number – HR 3590 – originated in the House. This bit of flim-flammery occurred by gutting an original bill authored by Rep. Charles Rangel under HR 3590, which was named the Service Members Home Ownership Tax Act of 2009, intended to amend “the Internal Revenue Code of 1986 to modify the first-time homebuyers’ credit in the case of members of the Armed Forces and certain other Federal employees." The bill passed the House in October 2009 and was sent to the Senate.

The Senate Majority Leader, Harry Reid (D-NV) stripped out the contents of the bill (except the first sentence), retained its HR designation number, renamed it the Patient Protection and Affordable Care Act, and stuffed it with Baucus’ 2,700-page bill replete with 21 new or higher taxes needed to make ObamaCare work. Therefore, ObamaCare was illegal from the outset.

A significant problem had to be overcome to make ObamaCare work in the real world, however. Many people were uninsured – about 45 million – some voluntarily because they were young and healthy and the purchase of expensive health insurance was not a good value for them. Others were temporarily uninsured because they were between jobs. Still others – the minority of uninsured – couldn’t afford insurance. Somehow the voluntarily uninsured young healthy people would have to be dragooned into the insurance system because insurance companies lose money on sick people, whose claims exceed their premiums, and make money on healthy people whose premiums exceed their claims. The insurance companies needed the premium payments of the healthy to offset the losses of the chronically and acutely sick.

The answer: a mandate in ObamaCare that required everyone in the country to be insured – i.e. everyone had to pay into the risk pool – and anyone who did not would be subject to a penalty whose amount varied by income. The mandate would allegedly prevent insurance premiums from rising. If everyone weren’t forced to pay into the pool, the sickest insureds would drive up premiums, then those on the income margins would drop their insurance coverage because it would become too expensive – exacerbating the uninsured problem without a mandate. Well, in theory that was the idea.

The irony of the ill-conceived ObamaCare, however, is that it makes it illegal for insurance company premiums or issuance to discriminate against people with preexisting conditions. Therefore, there is no incentive for many (if not most) people to buy insurance until they are sick or old enough to need it. The penalty they pay for foregoing insurance pales against premium cost, and with this perverted incentive, going without insurance will only get worse.

When ObamaCare passed into law without a single Republican vote – and without the votes of some in the Democrat caucus – critics howled at its constitutional underpinnings (or lack thereof.) The effect of the individual mandate, they correctly claimed, was to arrogate to the federal government police powers – i.e. “do this or else” – which are expressly reserved to the states in the Constitution. Police powers allow the regulation of behavior for the general welfare. Violations can result in compulsion, like arrest, or inducements, like fines. The 10th Amendment, one of the original Bill Of Rights, states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, the federal government is limited to its enumerated powers in the Constitution, which don’t include police power.

In order to get around the restriction of the 10th Amendment, Congress used another provision to seize police power whenever it wanted to control society’s behavior. It used the Commerce Clause. This is an abuse of Article I, Section 8 which clearly was intended to regulate real commercial transactions across state lines – not implied, not potential, not “could have been” transactions like Wickard v. Filburn. I have previously blogged on the rationale of the Commerce Clause and therefore won’t repeat its rationale here, but suffice it to say when Congress found the cookie jar in its insatiable quest for power to regulate people’s lives, it usually found a willing accomplice in the Supreme Court.

I fully expected that to happen again as ObamaCare wended its way through the court system en route to the Supreme Court. The Commerce Clause defense had survived the scrutiny in the majority of District and Appellate courts that heard its contorted logic, including the finding of a conservative appeals court justice about whom I also blogged almost a year ago to the day of the Roberts’ findings. I predicted then that there was a good chance that ObamaCare would survive – not because I was prescient, but because the “liberal” side of the Court always brings guns to a knife fight, and I didn’t trust the “conservative” side to restrain its liberal activists any more than the Court has restrained an activist Congress that has been out of control most of my life.

ObamaCare was argued before the Supreme Court from March 26 to 28 and quite likely the Court made its decisions in late March or early April in order that assignments could be made for writing the majority and dissenting opinions. Normally, Supreme Court hearings last an hour – 30 minutes for each side. The fact that this case spanned six hours over three days suggested that the Court considered the issues extraordinary. Similarly, the hearing that led to the 1966 Miranda decision, wherein police officers must advise suspects of their rights, had taken six hours. Two important campaign finance cases were each granted four hours to argue. Interestingly, only 90 minutes was set aside to hear the important 2000 Bush v. Gore arguments, which the silliness of Florida’s “hanging chad” Supreme Court had stirred up.

The first day heard 90 minutes of ObamaCare oral arguments concerning the Anti-Injunction Act, a law that harks back to 1793 and prohibits challenges to tax laws until taxes are collected. The AIA would only be germane if the mandate, which doesn’t go into effect until 2015, or any part of it could be considered a tax, which Obama and his coterie steadfastly denied. Justice Alito anticipated the government’s strategy and jumped into the argument Solicitor General Donald Verrilli put forward on the first day:

General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back, and you will be arguing that the penalty is a tax. Has the court ever held that something that is a tax for the purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?

"No," answered Verrilli.

The second day of hearings lasted for two hours during which the arguments defending and disputing the coercion of individuals into purchasing insurance under the provisions of the Commerce Clause were put forward.

The third day dealt with severability and the Medicaid mandates imposed on the states. ObamaCare has no severability clause, therefore, if any part is found unconstitutional, the entire law could be struck down. Severability arguments were heard for 90 minutes, followed by an hour of arguments concerning the usurpation of states’ rights if ObamaCare is allowed to tell states to expand the reach of their Medicaid program “or else” forfeit all federal Medicaid funding – another police power grab.

When the decisions were to be read last Thursday, a lawyer in attendance observed that Justice Kennedy – usually the swing vote – entered the chamber virtually seething with anger. That was a sign there were fireworks ahead.

In years past, Congress has made an art form of abusing the intent of the Commerce Clause, as I’ve said above, to pass all manner of laws, often with the collaboration of the Supreme Court. The Civil Rights Act of 1964 became law under the provisions of the Commerce Clause, if you can believe it, and so did the Endangered Species Act. So I was surprised that the Court found against the mandate under the provisions of the Commerce Clause. The Court opined that Congress would have unlimited authority if the mandate was allowed under that provision of the enumerated powers.

“The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions," Roberts wrote for the majority, which included Justices Scalia, Kennedy, Thomas and Alito. Congress can regulate commerce; it cannot compel one to engage in commerce.

The Roberts opinion for the majority thus lectured future Congresses:

The Constitution grants Congress the power to “regulate Commerce.” The power to regulate commerce presupposes the existence of commercial activity to be regulated. If the power to “regulate” something included the power to create it, many of the provisions in the Constitution would be superfluous....

Our precedent also reflects this understanding. As expansive as our cases construing the scope of the commerce power have been, they all have one thing in common: They uniformly describe the power as reaching “activity.” It is nearly impossible to avoid the word when quoting them....

The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.

It would therefore appear that Roberts has sealed off the Commerce Clause pretense when future Congresses attempt to force citizens to “do” something rather than “not do” something. Roberts went on to reject the mandate as an exercise of congressional authority under the Necessary and Proper Clause, which had also been argued by Verrilli. Therefore, the naked grab for police power implied in the mandate and penalty was rebuffed, and the 10th Amendment continues to prevail against the intrusion of the federal government.

But just at the point where it seemed the mandate was about to go down, Roberts resuscitated it by launching into a logical backflip that would rival Abbott and Costello’s “Who’s on First” routine. Joining the four Court liberals to form a majority he wrote:

Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. That, according to the Government, means the mandate can be regarded as establishing a condition – not owning health insurance – that triggers a tax – the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.

The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one. As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read.

Verrilli’s bumbling tax argument had hooked its prey – Roberts. The Court had unanimously agreed that the individual mandate was not a "tax" under the Anti-Injunction Act, thus allowing the ObamaCare case to be heard. But Roberts, searching for some justification to avoid throwing out ObamaCare, concluded that, notwithstanding what Congress called the mandate, it was a tax. ObamaCare became RobertsCare when he essentially rewrote it by interpretation. Thus, he explained,

The Affordable Care Act describes the ‘[s]hared responsibility payment' as a ‘penalty,' not a ‘tax.' That label is fatal to the application of the Anti-Injunction Act.… It does not, however, control whether an exaction is within Congress's power to tax.

In other words, sometimes ‘tis, sometimes ‘tain’t.

Stay tuned to the continuing saga next week.