constitutional

Why Have a Legal System at this Point?

by Lee Doren on February 3, 2011 · 3 comments

in Legal

In the recent court decision declaring Obamacare unconstitutional, the Judge wrote the following on page 75 of the opinion: “[T]he award of declaratory relief is adequate and separate injunctive relief is not necessary.” This statement was regarding whether to order an injunction stopping the federal government from implementing Obamacare. Using crystal clear language, the Judge argues that the government should not enforce a law that a judge declares unconstitutional. Mark Levin has argued this point earlier in the week.

Sadly, the Obama administration appears willing to ignore the court’s decision and continue to enforce the law. So, in light of the federal government’s decision, what is the point of have the Constitution or a legal system at all? The Congress and the President passed a law that was clearly unconstitutional. A judge declares it so and says that he doesn’t even need to grant an injunction because the government cannot implement unconstitutional law, and yet, we continue as if nothing happened.

Using words like tyranny often turn off people who consider themselves willing to disagree without being disagreeable. But, what else would one call this? We have a government currently enacting policy with no checks and balances, and no system with which people can predict their legal standing. How else does one define what has taken place this week?

Dodd-Frank Financial “Reform” Violates Property Rights and Equal-Protection Guarantees

by Hans Bader on January 9, 2011 · 2 comments

in Bailout Watch, Economy, Legal, Property Rights, Regulation

Last week, I described how the Dodd-Frank financial “reform” law passed last summer violates constitutional separation-of-powers safeguards by giving unaccountable bureaucrats the power to seize companies and legislate through administrative fiat.  But that is not the only way Dodd-Frank violates the Constitution.  It also violates property rights and equal-protection guarantees.

For example, it contains racial preferences that were criticized by members of the U.S. Commission on Civil Rights. It “imposes race and gender employment quotas on the financial industry,” noted economist Diana Furchtgott-Roth in the Washington Examiner. Its ”Section 342 states that race and gender employment ratios must be observed by all government agencies that regulate the financial sector, as well as private financial institutions that do business with the government.”

This unconstitutional requirement is the brainchild of Los Angeles Congresswoman Maxine Waters, the Castro-loving, left-wing ideologue who earlier praised the Los Angeles race riots that destroyed scores of Korean-owned businesses as an “uprising” against injustice. Waters once told a CEO in a public Congressional hearing, “This liberal will be all about socializing . . . .uh, uh . . . would be about, basically, taking over and the government running all of your companies.”

Law Professor Richard Epstein notes that Dodd-Frank is also an unconstitutional “taking” of private property, since it deliberately forces certain banks to process debit card transactions at a loss. (That provision is being challenged in a lawsuit called TCF Bank v. Bernanke. Debit cards did not contribute to the financial crisis in any way, but Dodd-Frank regulates them at the behest of large businesses that objected to being charged any fee by banks for processing debit card payments. Thanks to Dodd-Frank, some customers will now be charged annual fees for their debit cards.)

Dodd-Frank itself contains little “reform,” reinforcing the very features of the status quo that spawned the financial crisis.  Congressional Democrats blocked a GOP amendment that would have reformed the government-sponsored mortgage giants, Fannie Mae and Freddie Mac, and the Obama administration lifted a $400 billion limit on bailing them out and showered their executives with $42 million in pay — even though Treasury Secretary Geithner has admitted that “Fannie and Freddie were a core part of what went wrong” in the financial crisis.

Fannie and Freddie helped spawn the mortgage crisis by buying up risky mortgages and repackaging them as prime mortgages, thus creating an artificial market for junk: “From the time Fannie and Freddie began buying risky loans as early as 1993, they routinely misrepresented the mortgages they were acquiring, reporting them as prime when they had characteristics that made them clearly subprime.”

At the direction of the Obama administration, Freddie Mac ran up more than $30 billion in losses to bail out mortgage borrowers, some of whom had high incomes. Federal regulators sought to make Freddie Mac hide the resulting losses from the SEC and the public.

Dodd-Frank is not unique in containing racial preferences. Many bills backed by Obama are riddled with racial set-asides, including the health care law passed last year. Obamacare has attracted criticism from the U.S. Commission on Civil Rights for containing both racial preferences and lower standards for treatment in predominantly-minority institutions, potentially harming both white applicants and minority patients. This racial discrimination appears to violate court rulings like the Supreme Court’s Adarand decision, and the Rothe and Western States Paving decisions issued by the federal appeals courts.

Obamacare Makes State Budget Problems Worse

by Hans Bader on December 21, 2010 · 1 comment

in Healthcare, Legal, Regulation

Obamacare is making state budget problems much worse, as governors now lament. Earlier, CEI filed an amicus brief in Florida v. HHS on behalf of two governors explaining how the radical changes to state Medicaid programs resulting from Obamacare violated limits on congressional power under the Constitution’s spending clause. Some of the fiscal burdens Obamacare imposes on states are obviously huge, while many others are ambiguous, unpredictable, and contingent on bureaucratic caprice, and uncertain future events.

Governors like Phil Bredesen (D-Tenn.) and Donald Carcieri (R-R.I.) warned earlier about the crippling costs of Obamacare to state budgets, but they were ignored by Obama and Congressional Democrats in their headlong rush to pass the health care bill. An adviser to Gov. Bredesen, James Blumstein (a professor of constitutional and health care law at Vanderbilt), argues that Obamacare is a violation of constitutional limits on Congress’s power under the spending clause.

Senate Leaders Violate Constitution in Pushing Through Costly Food Safety Modernization Act

by Hans Bader on December 2, 2010 · 3 comments

in Health and Illness, Legal, Nanny State, Personal Liberty, Precaution & Risk, Regulation

The House and Senate passed different versions of the Food Safety Modernization Act, which would ratchet up costly regulations of farms and food processing.  (Greg Conko explains how the bill’s expensive and cumbersome red tape might thwart “firms from developing innovative new processes and practices that could deliver real food safety improvements.”)   But as Conko and law professor Jonathan Adler have separately noted, there is a constitutional problem with the bill.  As Conko notes, the “user fees added to the Senate version run afoul of a constitutional requirement that tax measures originate in the House.

Similarly, Professor Adler notes “that the Senate’s failure to follow constitutionally prescribed procedures could doom the food safety bill.   The bill includes fee provisions that constitute taxes and the Constitution requires that all tax bills originate in the House of Representatives, and it looks unlikely that House Dems will let the slip pass.  Based on what Walter Olson has written about the bill, this could be a good thing.”

The House version of the bill would “drive out of business local farmers and artisanal, small-scale producers of berries, herbs, cheese, and countless other wares, even when there is in fact nothing unsafe in their methods of production,” warned legal commentator Walter Olson at Overlawyered.   I earlier discussed the harms likely to result from the bill, and false claims made by the bill’s defenders, here.

Obamacare Results in 47 Percent Premium Hike

by Hans Bader on October 17, 2010

in Healthcare, Insurance, Politics as Usual, Regulation

Obamacare has just led to a 47 percent increase in some health insurance premium rates in Connecticut:

The state’s largest insurer has been approved to raise health premium rates by 41 percent to 47 percent for some of its policies sold to individual buyers, in the largest price hikes yet seen in Connecticut since the adoption of national health care reform… The reason for the increases is the new federal health reform mandates, according to Anthem and the state Department of Insurance.

This is the exact opposite of what Americans were promised by the sponsors of Obamacare, which was deceptively billed as the Affordable Care Act.

Earlier, a judge in Florida refused to dismiss a constitutional challenge to Obamacare.

Obamacare includes major tax increases such as new taxes on investors and a $60 billion excise tax on health insurers that will be passed on to consumers.  It has already resulted in higher costs for major employers, and the elimination of high-quality health care plans. Insurance regulators in Connecticut had previously approved other premium increases.

The higher costs of Obamacare are one factor in why employers are reluctant to hire. Last month, 95,000 jobs disappeared as more jobs were eliminated than created in the American economy.

Judge Rejects Obama Administration’s Motion to Dismiss Challenge to Obamacare

by Hans Bader on October 15, 2010 · 1 comment

in Healthcare, Insurance, Legal, Regulation

A judge in Florida has rejected the Obama administration’s motion to dismiss challenges to Obamacare brought by 20 state attorneys general and the National Federation of Independent Business. U.S. District Judge Roger Vinson found that the attorneys general had made a plausible argument that Obamacare is in excess of Congress’s power under the Commerce Clause and in violation of the Tenth Amendment — indeed, he said it wasn’t even “a close call.”

The judge gave a green light to a challenge to Obamacare’s requirement that all citizens buy federally-regulated health insurance — the so-called “individual mandate.”  “While the novel and unprecedented nature of the individual mandate does not automatically render it unconstitutional,” Judge Vinson observed, “there is perhaps a presumption that it is.”  This means at the very least that “the plaintiffs have most definitely stated a plausible claim with respect to this cause of action.”

The judge also allowed the state attorney generals to challenge Obamacare’s Medicaid expansion provisions under the Tenth Amendment.

We earlier explained why the individual mandate contained in Obamacare is unconstitutional because it exceeds Congress’s power under the Commerce Clause. We joined an amicus brief filed by the Cato Institute supporting Virginia’s challenge in a case pending in Richmond, which you can find here. The judge in the Virginia case also rejected the federal government’s motion to dismiss the lawsuit.  Three former U.S. attorneys general, William Barr, Ed Meese, and Dick Thornburgh, also filed a brief challenging Obamacare in that case.

Briefs in many constitutional challenges to Obamacare can be found at this website.

At the ACA Litigation Blog, Brad Joondeph summarizes the Florida judge’s ruling, noting:

After laying out the competing arguments as to whether [the individual mandate, contained in Section 1501(b) of Obamacare,] is within Congress’s commerce power, he states as follows: ‘At this stage in the litigation, this is not even a close call.’ Judge Vinson goes on to explain that the individual mandate is ‘simply without prior precedent’ (p.61), and that, unlike statutes upheld by the Supreme Court in prior Commerce Clause decisions cited by the federal government (such as Heart of Atlanta Motel and Wickard), this regulation ‘is not based on an activity that [people] make the choice to undertake’ (p.63). In other words, Judge Vinson sees this as a regulation of inactivity, and thus one that is qualitatively different from prior uses of the commerce power (as augmented by the Necessary and Proper Clause). Moreover, he finds it highly salient that those regulated by 1501 (that is, all legal residents) have not taken some sort of voluntary action (such as entering the motel business, or growing wheat, for example) before being subjected to the provision’s requirement. Seeing the minimum coverage requirement in these terms, I think, is probably going about 75 percent of the way towards finding it unconstitutional. Mind you, Judge Vinson concludes by stating that he is holding only that the states have ‘stated a plausible claim.’ (p. 64). But the reasoning behind his conclusion–not to mention the modifier ‘most definitely’ that precedes it–gives one the sense that, following the coming motions for summary judgment, the odds are in favor of the court declaring the minimum coverage provision unconstitutional.

ACORN Challenges Cut-Off Of Federal Funds After Child Prostitution Scandal, Claiming It Is ‘Unconstitutional’

by Hans Bader on November 12, 2009

in Legal, Personal Liberty, Politics as Usual, Sanctimony

ACORN has just filed a lawsuit in New York challenging as “unconstitutional” its loss of federal funds after its role in a child prostitution scandal was exposed.  Earlier, it sued those who exposed its role in that scandal for $2 million, claiming that the exposure violated its privacy rights under state audiotaping laws.  ACORN claims that Congress’s vote to cut off federal funds to ACORN is an unconstitutional bill of attainder.

ACORN is a left-wing group that launched President Obama’s career as a community organizer (ACORN stands for Association of Community Organizations for Reform Now).  Obama has long-standing ties to ACORN, and an ACORN affiliate received received $800,000 from Obama’s campaign.  Earlier, a liberal prosecutor (and fervent Obama supporter) threatened to punish those who exposed ACORN’s scandalous actions, while turning a blind eye to ACORN’s wrongdoing.  Now, however, Obama is quite rationally distancing himself from ACORN, which has become an embarrassment to its one-time supporters.

Legal scholars like Hans Von Spakovsky of the Heritage Foundation have explained why Congress’s cut-off of funds to ACORN was perfectly constitutional.  It is easy to see why Congress would not want scarce federal funds to go to ACORN, which has a long history of terrible financial mismanagement, waste of funds, financial fraud, vote fraud, and tax evasion.  Congress had many legitimate,  non-punitive reasons for cutting off funds to ACORN.

ACORN’s lawsuit is brought by the radically left-wing Center for Constitutional Rights (CCR).  CCR’s founder, William Kunstler, was very open about the fact that he believed in civil liberties only for left-wingers in capitalist societies, not for dissidents of any stripe in Communist countries.  A classic example was his attitude towards dissidents in South Vietnam.  Many of these dissidents were liberals who had once criticized the U.S.-backed South Vietnamese government.  After communist North Vietnam conquered South Vietnam, the dissidents began politely criticizing the human-rights abuses of the new government.  They were promptly sent to re-education camps, where they were starved or tortured to death.  The new Communist government turned out to be far crueler than the old right-wing government, which had at least allowed dissidents to live.

When some liberals, like Joan Baez, criticized this oppression against dissidents they had once worked with, William Kunstler refused to do so, saying that once a communist regime took power, he was not in favor of criticizing it for any human-rights abuses it committed.  Kunstler said, “I don’t believe in criticizing socialist governments publicly, even if there are human-rights violations.”  To Kunstler, civil liberties were just a tool to be used to bring down capitalist governments and pave the way for a communist “dictatorship of the proletariat.”  Once such a dictatorship was in power, there was no more need for civil liberties or individual freedoms of any kind, since individual freedom could only prove an obstacle to the socialist transformation of society.