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.