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Streetcar Line
Half-Developed Thoughts
Musings on three utterly unrelated topics, one of them an outrage, two of them very classy.
Item the first: Far more ink (and cyber ink) will, and deserves to be, used to dissect yesterday’s ruling by the U.S. Fourth Circuit Court of Appeals to the effect that neither Virginia Attorney General Ken Cuccinelli nor Liberty University has legal “standing” to challenge Obamacare. And while most of the focus will probably rest on the setback for rising conservative star Cuccinelli, the most indefensible of the rulings is the one involving Liberty.
As will be duly noted in every news story on the rulings, neither dismissal actually addressed the substance of the constitutional challenges — although two of the liberal judges indicated they would have upheld the law if they had not dismissed the suits on other grounds. On the issue of standing, they dismissed Cuccinelli’s suit — wrongly in my opinion — because they said the state itself (as opposed to individual citizens) was not burdened by the “individual insurance mandate” at issue. All along, I and others have thought that Cuccinelli might lose on this “standing” issue because his argument isn’t exactly a common one. His argument is correct — namely, that he is protecting a state law against the mandate, and a state has every right to go to court when the feds contradict a state law in a way the state believes is unconstitutional — but it’s not enough of a slam dunk to overcome determined liberal jurisprudence.
The Liberty suit is another matter; indeed, it’s sort of the converse. Whereas the university’s “standing” argument should have been unassailable, its argument on the constitutional substance is correct but far from a slam dunk. What’s really strange is that the judges didn’t even let the school reach the legal substance, because they rejected the university’s logically airtight standing to sue in the first place. The grounds on which the judges made the decision are so ludicrous as to be intellectually bankrupt.
Against all reasonable evidence and against the rulings of every other court, both liberal- and conservative-dominated, that has considered the issue, this Fourth Circuit panel concluded that the mandate actually operates as a “tax.” Congress has broader powers to tax than it does merely to regulate; thus, legal challenges to a tax face a higher bar. Because these obstreperous judges say it is a tax that hasn’t actually been imposed yet (it has been passed by Congress but not yet implemented), they say the university has suffered no harm yet and thus can’t sue.
The absurdity is that the mandate is in no way a tax. By both definition and implementation, it imposed no tax but instead a penalty for non-compliance. President Obama himself repeatedly argued in public that it wasn’t a tax. Congress didn’t call it a tax. And every other court — at least four district courts and two appeals courts — that has analyzed this claim has made mincemeat of the administration’s contention that it is a tax. Most of those courts haven’t just rejected the claim; they have eviscerated it.
As the 11th Circuit Court of Appeals (including a Bill Clinton appointee) put it, “The plain language of the statute and well-settled principles of statutory construction overwhelmingly establish that the individual mandate is not a tax, but rather a penalty. The legislative history of the Act further supports this conclusion…. [A]s the statute itself repeatedly states, [it is] a ‘penalty’ imposed on an individual for failing to maintain a minimum level of health insurance coverage.” If it is not a tax, then the legal bar against challenging the mandate is lower and far more easily overcome.
This ruling against Liberty University’s very standing to challenge the law in the first place is an abomination of judicial legislating, willfully pretending that a provision of the law means something completely different from what its words themselves clearly state. This ruling is fundamentally dishonest and thus a violation of the judges’ oath to faithfully uphold the Constitution. For shame.
Item the second: Here’s a prediction: If Sarah Palin does not get into the race for the Republican presidential nomination, there will be one more major entry into the field. That new entrant, who may well win the nomination, will be either Jeb Bush or Louisiana Governor Bobby Jindal.
Jindal? Huh? Isn’t he up for re-election in Louisiana this November, thus precluding him from organizing a presidential campaign?
Yes and no. Yes he’s up for re-election, but no, that doesn’t preclude the presidential attempt. Qualifying for governor closed on Thursday without a single major opponent entering the fray; only several unknown, no-chance candidates decided to challenge Jindal. His team will deny it, and I have absolutely zero “inside information,” but the coast is clear for him to coast to re-election with well over 60 percent of the vote while spending most of his would-be campaign time actually organizing a presidential run. He might miss the presidential primary/caucus qualifying deadline in a state or two, but he’ll calculate that he might be able to win without them.
This is not to say I think he would be the best nominee. It is merely a prediction, not a wish.
As for Jeb Bush, I think the bad blood between the Bushes and Rick Perry is so severe, and the concerns of the GOP establishment about Perry’s general-election weaknesses are so deep, that the former Florida governor will again feel serious pressure to run if it looks like Perry otherwise might coast to the nomination. Again, this is not a wish — I have said for years that I think I’m allergic to Bushes — but it is what my internal, invisible Tarot cards are telling me.
Item the third: Now, to the important stuff. I think it’s a crying shame that Peyton Manning, a true class act, will be missing most of this football season due to neck surgery. Manning is one of those rare athletes who can win all sorts of awards while playing and still not be fully appreciated until after he’s gone (which, in terms of his career, I certainly hope won’t be for another four or five years!). I think it is likely that he is the single best regular-season quarterback ever. The Patriots could lose Tom Brady and still win 11 games; the Steelers could win 3 of four games with Ben Roethlisberger gone; but I am betting the Colts don’t even come close to being a .500 team while Manning is out.
As for his post-season record, he gets too much blame. The man has led his team to a Super Bowl victory (although one of the running backs, not Manning, should have won the MVP award for the game itself), and he played absolutely superbly in another Super Bowl until one unfortunate timing pattern in which his sore-kneed receiver wasn’t able to make his “cut” to the ball as quickly as usual; and in a number of the Colts’ other playoff losses, Manning has played quite well only to see his defense fail or other occurrences out of his hands block victory. Indeed, I think there has only been one playoff game, in all the two dozen or so in which he has played, in which he really played poorly. Granted, in a number of those playoff games he has been merely good rather than his usual, regular-season superb — which is why he can’t be placed above the clutch multiple-championship winners like Joe Montana, John Elway, and Johnny Unitas. Nevertheless, if you review the game tapes, you won’t see a playoff choker; you’ll just see somebody whose competition rose to the occasion.
Anyway, here’s sending good wishes to Manning for a full and fast recovery. I’ve watched his career, literally often close-hand, since he was a four-year-old sitting in the Superdome stands watching his father play for the Saints. It is safe to say that he is a pro’s pro and as classy an individual, from as classy a family, as you’ll ever find in the ranks of elite athletics.
About the Author
Quin Hillyer is a senior editor of The American Spectator and a senior fellow at the Center for Individual Freedom. Follow him on Twitter @QuinHillyer.
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Darin| 9.9.11 @ 6:32AM
Regarding Bobby Jindal. I'd love to see him run and watch what happens when (not if) the Democrats try to claim he's not eligible since he's not a natural born citizen (his parents were not US citizens at the time of his birth). The big O's father was a British citizen as is shown on the forged birth certificate released by the White House.
9thID| 9.9.11 @ 9:49AM
Dittos for Rubio...
Bill Hussein O'Stalin| 9.9.11 @ 6:33AM
Jeb Bush would fall flat on his face. I think Jindal has waited to long to "catch up."
Delta Zelda| 9.10.11 @ 1:31PM
I live in Florida and voted for Jeb Bush twice. If he’d been eligible to run for a third term, I’d have voted for him again. We had four hurricanes in six weeks, and he did a masterful job handling the aftermath. Really got hacked with George W because I had anticipated voting for Jeb twice as president. George killed all hope of that. I don’t see the big problem with Perry. I think he will stand up to Obama during the campaign, and use Obama’s own words to defeat him. At this point, I would vote for a bluetick hound on the Republican ticket. I am very much afraid that RINOs and Establishment Republicans will put Romney on the ballot. Like John Edwards, Romney is a pretty face with no real accomplishments except midwiving Obamney care. Romney is a flip-flopper who was for/against a thing until he was for/against it. I would like to vote FOR somebody. If Romney is on the ballot, I will hold my nose and vote Republican.
Brian Mc| 9.9.11 @ 6:46AM
As to your first point, shame indeed, Quin. Common sense has abandoned our courts and it appears we the people have no more recourse...self-government-what a crock.
As to your third point, well-said in the case of Mr. Manning. He has upset me in so many ways, over the years, and is a major reason why football is the most fascinating sport in the world...go Steelers!
Butch| 9.9.11 @ 12:48PM
Quin's list of multiple-championship quarterbacks left off Terry Bradshaw, Brian.
But I do agree about Peyton. I am brutal in comparing the modern players to the older guys, but Peyton reminds me of Johnny Unitas out there. And, Quin's right about the family. Archie Manning was the toughest guy to ever put on a football uniform. No blocking at all: ultimate scrambler, ran like a deer, ultimate quick release, good at getting 'em off going down.
Pecos Pete| 9.9.11 @ 7:16AM
The U.S. Fourth Circuit Court of Appeals simply dodged the issue. Their ruling allowed them to avoid having to struggle with the constitutional issues related to ObamaCare. Now, on to the Supreme Court.
Timothy L. Pennell| 9.9.11 @ 8:00AM
No they didn't. They did what they did, for the PARTY.
Like any good NAZI or COMMUNIST, they did the work of the PARTY.
Constitution? What Constitution?
You mean that RELIC, written by a buncha White Slave Owners?
It's Living and Breathing, and it only means what we says it means.
To the Fatherland.
Hail the PARTY!
HEIL OBAMA!
And, soon to be coming to a Re-education Camp front gate near you: HARTE ARBEIT WIRD EUCH FREI MACHEN.
RCV| 9.9.11 @ 1:05PM
Tim, you are off the deep end, it's almost comical. The judges on the Fourth Circuit are, I can say with confidence, not members of either the Communist or Nazi parties. And the issue of standing is in fact mandated by the very Constitution you refer to, which limits the jurisdiction of federal courts to "actual cases and controversies" in which the parties have a cognizable legal interest.
Timothy L. Pennell| 9.9.11 @ 7:32PM
Look, pal. Two Judges appointed by Obama. One, by Clinton. Now, you tell me how ANYONE, besides a PARTISAN IDEOLOGUE, can actually believe that our FOUNDING FATHERS, who DETESTED an all powerful centralized government, would think that a President, MANDATING that We The People, BUY SOMETHING, is Constitutional.
We're waiting, dumb*ss.
RCV| 9.9.11 @ 8:25PM
First, Timothy, the Fourth Circuit was not ruling on the merits of the issue. They were ruling on standing, which is an issue essential to federal jurisdiction under the Constitution, written by our Founders. That Constitution prohibits our Federal courts from issuing "advisory opinions", opinions in cases in which the person filing the suit does not have a cognizable legal interest. That was the issue before the Fourth Circuit.
Secondly, our Founders were not a monolithic group of like-minded individuals. They differed passionately on many issues, including the need for a powerful centralized government. They ranged from Hamilton -- who would have been perfectly happy with a strong powerful federal executive, even a monarch -- to Patrick Henry, who wanted nothing to do with a central government at all. That's one of the many problem with the theory of "original intent" as an interpretive approach to constitutional law, as opposed to textualists, who insist we look to the actual written text of a provision or law.
Lastly, our inherited common law system mandates a respect for precedent, so that we have certainty and predictability in our jurisprudence. Read Antonin Scalia's opinion in the marijuana tax cases and discover what even a highly respected, thoughtful conservative jurist, with great respect for original intent, tells us about the broad extent of Congress's power under the Commerce Clause.
And while you're at it, think about this. At the time of the Revolution, a number of the colonies had laws which required -- MANDATED to use your emphasis -- that adult males in certain jurisdictions BUY SOMETHING (namely a firearm) and store it in the community magazine, for use if necessary in the community's defense.
And lastly, stop calling people you disagree with junior high names. Just sayin'.
Wayne| 9.10.11 @ 4:14PM
No offense, but I think you have been drinking the wrong kool-aid if you think it is just a matter of different opinions. The democrats have openly expressed the desire in 2008 of having a one-party system. They have no desire to share power with Republicans, and have been engaging in calling Tea Partiers and right-wing Republicans Terrorists, Racists and Barbarians.
Margie| 9.10.11 @ 10:09PM
Shh! Please don't confuse him with the facts.
donserge| 9.9.11 @ 7:27AM
When I lived close to Myrtle Beach SC and DeMint was running his first campaign against a very liberal opponent I maintained then that senatorial elections mattered immensely because of judicial appointments. They have not lost their importance.
TennesseeVolunteer| 9.9.11 @ 7:29AM
Quin, you got it all wrong!
Peyton should be the one running for President!
Have you considered| 9.9.11 @ 8:22AM
If the Obamacare mandate stands after all is said and done, I honestly believe we will see riots in the streets, and rightly so. This is a hill worth dieing upon.
I had a different thought...If Obama really believes he can force persons to purchase a product by using fines as the enforcement mechanism, why hasn't he mandated that business owners purchase labor and hire at least 2 unemployed persons under threat of fines? I don't see a legal difference.
Wouldn't this solve all of our problems?/sarc?
Regarding Peyton Manning, As a former long time resident of Indy, I Love Peyton!! He is a class act from stem to stern.
fmm| 9.9.11 @ 11:55AM
Unions already use this approach of mandated hiring, so can it be far behind from progressives? One example is unions forcing the hiring of an extra pipefitter for each 4 already on the job as a "walking foreman". He did no work, just added to the cost of construction.
Ivan Ivanovich| 9.9.11 @ 9:30AM
Jeb or Bobby don't matter President Romney will be installed in 2013. He's a good guy, and good American like his dad and he doesn't say stupid things like Ponzi scheme.
YeloStalyn| 9.9.11 @ 9:57AM
Politically toxic doesn't equate to stupid. Please explain how SS, which pays out early investors with the money of new ones... you know, like a Ponzi scheme... isn't a, well... Ponzi scheme.
Wayne| 9.10.11 @ 4:23PM
I would say generational welfare instead. It sets up one generation against another. At some point the younger generations will vote out social security because it will not be in their best interest to pay for a benefit they will never receive. That will be after they already decided to do away with medicare, another Ponzi scheme.
RCV| 9.11.11 @ 1:32AM
Let's see the GOP run on that platform and we'll see how it fares.
YeloStalyn| 9.12.11 @ 10:02AM
Yet another example of pragmatism (liberal) versus principle (conservative). No one doubts it's politically toxic... but the political viability of an idea is not, in any way, related to how right, good, just, or otherwise worthy something is.
SHOULD the GOP run on ending SS etc.? Yes. Will it be a successful campaign? No... at least not at first. Galileo ran an unsuccessful campaign on what he knew was right for a while before things eventually changed in his favor.
RCV| 9.12.11 @ 6:20PM
Please, then, start with that campaign in 2012!
9thID| 9.9.11 @ 9:55AM
After reading his emotional screed on Rick Perry yesterday, and now the Jindal/Jeb Bush theory, I am convinced that Quin's modus operandi is indeed "Half-Developed Thoughts". Next, he will be pushing for his mentor Joe Scarborough to run on the GOP ticket...
Who Knows?| 9.9.11 @ 12:28PM
Now-ism is always present. Indeed, one could truly say that the present is just NOW, playing itself out.
When Quin exposes his biases about Manning, we have in full nakedness a perfect example of this. Why, ever since he (Quin) got to see the kid at age four on the sidelines of Saints games, as his dad played for the team aptly named by its FANS as the “Ain’ts”, he’s naturally followed the star, Peyton---identifying with him, Quin?
What gives away the store-of-identification is the phrase “best ever”, as applied to the quarterback---nice, though, that he qualified this by limiting it to the regular season.
Hey—it’s nothing personal, Quin.
We ALL do the same thing, given our own impressionable youths, so some people stand out, usually DESPITE their relative “best ever” status.
Proof---this 69 year old Oregonian still remembers Dave Grosz, quarterback of the University of Oregon, which only lost by 10 to 7 to the heavily favored number one Ohio State Buckeyes in the 1958 Rose Bowl. That was back in the day when bowl games were vastly more important, and fewer than today.
Alas, I didn’t get to see ANYONE on the sidelines, but I DO clearly remember seeing the replays of each Saturday game on Sundays. In those dark days, we got by listening on the radio.
Good old Doug Lamear spent about a half an hour presenting the game, by ONLY showing the plays, and eliminating all the time before the ball was snapped and the whistle ended them. Ah, it was so fresh as a kid to see even Oregon State, running the single wing, move down the field like a well-oiled machine.
They were the BEST EVER!
PattyMor| 9.9.11 @ 3:47PM
Well Jeb can jump in if he wants to, but George peed in the Bush sandbox. He isn't going anywhere; the electorate doesn't want another Bush in the WhiteHouse.
I would love to see Bobby Jindal run and see the progressives twist themselves into pretzels trying to attack his eligibility, while they still seek to shelter BHO from scrutiny and lawsuits. Just too precious to contemplate!
JKMc| 9.9.11 @ 6:15PM
The GOP establishment is not afraid Perry will lose to Obama. They are afraid he will win and he isn't their RINO choice or a DC insider. They will ram Romney down our throats as they did McCain.
DaveS| 9.10.11 @ 10:27AM
Fear is not the word: acknowledgement is the word. Perry in a landslide.
JKMc| 9.10.11 @ 3:25PM
I hope and pray you are right. But I check the Rasmussen daily Presidential Poll (of likely voters) often and am amazed that the highest disapproval of Obama is 56% and to my mind should be 80%. Our country is truly at a tipping point.
Skippy| 9.9.11 @ 8:12PM
OK, say the Supremes let O'care stand.
We send in our taxes voluntarily, and for decades, anti-taxers have held forth the prospect of tax revolt.
Woddaya say?
We simply fail to fill out our forms.
When one guy does it, he goes to jail.
When 12 million do, the Big Govt. bus grinds to a halt.
It's a reasonable first step before we break out the weaponry.
RCV| 9.9.11 @ 8:27PM
You go first, Skippy, and let's see how it works out for you.
DaveS| 9.10.11 @ 10:26AM
If you (the judges) cannot win on the merits, 'win' on the standing. This is the approach for those pro-Obama courts dealing with his 'natural born' citizenship.
These judges found a novel way (not so surprising) to deflect the issue. Put this way, the totalitarians did not win - nobody did (in this ruling.) Creative jurispimprudence, it was.
Bill S| 9.10.11 @ 12:50PM
Peyton Manning isn't a class act. He's a selfish player that wants so much money that hurts his team's chance to compete. He's a guy that made $30 million in endorsements and that still wasn't enough. Apparently he wants money more than championships. The Colts are a team that has to cut defensive players every year to get under the cap. It's disgusting. The NFL needs a maximum salary. I believe Manning's cap number for this year is $28 million.
Wayne| 9.10.11 @ 4:19PM
Manning's injury ending his consecutive game string just shows how impressive Brett Favre's record is. Two years Favre played with broken thumbs on his throwing hand.
Manning is certainly having a better career than Elway, who may have been the most over-rated player in our time. Elway finally won after losing 4 superbowls when he was well in his 30's because of his running back.
But what hurts Manning is that he comes at a time when their are many outstanding quarterbacks. He can't separate himself from the pack.
Robert| 9.10.11 @ 4:23PM
JKMc you've got that nailed on the head. The GOP is afraid Perry will win. But win he will. The Jindal / Bush entry is a red herring...neither will enter. Too many conservatives have arrived at the conclusion that they will never, ever vote for another Bush into the White House in their lifetime. On the other hand, if the Tea Party presents a third-party option, you watch the hemorrage of conservative votes from the GOP that will make Ross Perot's bid look like small town chump-change.
Wayne| 9.10.11 @ 4:25PM
Its what I would do if Jeb Bush got the GOP nomination. I have no problem with a third party candidate. I am tired of the go-along to get-along Republicans.
Robert| 9.10.11 @ 4:24PM
JKMc you've got that nailed on the head. The GOP is afraid Perry will win. But win he will. The Jindal / Bush entry is a red herring...neither will enter. Too many conservatives have arrived at the conclusion that they will never, ever vote for another Bush into the White House in their lifetime. On the other hand, if the Tea Party presents a third-party option, you watch the hemorrage of conservative votes from the GOP that will make Ross Perot's bid look like small town chump-change.
Tex Expatriate| 9.10.11 @ 9:17PM
As to Item the First. "The grounds on which the judges made the decision are so ludicrous as to be intellectually bankrupt." When have leftists ever been intellectually sound? They bleed intellectual red ink.
Item the Second. If the Republican Party turns to Jeb Bush, Obama wins a second term. If Americans knew who W really was, would they have voted for him? I doubt it, even despite his opponent.
Item the Third. Mr. Hillyer has this one analyzed down to the bone. Totally right. Expatriated here to Indiana, twenty-six miles from Lucas Oil Stadium, surrounded by Colts nuts (I still remember the Colts fondly as the Baltimore team who lost Super Bowl III to Joe's Jets), I do pay attention to what happens to them. Good analysis Mr. Hillyer.
العاب بنات | 9.11.11 @ 7:13AM
Jeb Bush would fall flat on his face. I think Jindal has waited to long to "catch up."
faisalala| 10.16.12 @ 2:49PM
Look, pal. Two Judges appointed by Obama. One, by Clinton. Now, you tell me how ANYONE, besides a PARTISAN IDEOLOGUE, can actually believe that our FOUNDING FATHERS, who DETESTED an all powerful centralized government
العاب بنات , would think that a President, MANDATING that We The People, BUY SOMETHING, is Constitutional.
We're waiting, dumb*ss