Michigan federal district Judge George Caram Steeh III upheld the Obamacare individual health insurance purchase mandate in a case challenging the law brought by the conservative Christian Thomas More Law Center.

The Politico story

Steeh’s decision referred to a number of intellectually questionable precedents expanding the Commerce Clause outrageously through the use of casuistical reasoning.

As Judge Steeh not inaccurately observes, a body of precedent law exists sustaining congressional edicts based on the constitutional power to regulate interstate commerce effectively reaching all sorts of persons and activities not in fact engaged in Interstate Commerce.

Post New Deal jurisprudential understanding of the Commerce Clause limitation amounted to the Constitution forbidding congressional interference only in cases of individual persons or activities that could not be in any way, shape or form theoretically causally connected (even negatively) to the national economy or to rational goals of liberal policy by clever and well-educated attorneys.

Such a standard is, of course, completely nugatory and impotent to stop anything at all, and Judge Steeh abashedly alludes to the relatively recent, and distinctly innovative for their era, cases of Morrison and Lopez to establish the contrary. I smiled ironically upon reading that.

The plaintiffs have not opted out of the health care services market because, as living, breathing beings, who do not oppose medical services on religious grounds, they cannot opt out of this market. As inseparable and integral members of the health care services market, plaintiffs have made a choice regarding the method of payment for the services they expect to receive. The government makes the apropos analogy of paying by credit card rather than by check. How participants in the health care services market pay for such services has a documented impact on interstate commerce. Obviously, this market reality forms the rational basis for Congressional action designed to reduce the number of uninsureds.

The Supreme Court has consistently rejected claims that individuals who choose not to engage in commerce thereby place themselves beyond the reach of the Commerce Clause. See, e.g., Raich, 545 U.S. at 30 (rejecting the argument that plaintiffs’ homegrown marijuana was “entirely separated from the market”); Wickard, 317 U.S. at 127, 128 (home-grown wheat “competes with wheat in commerce” and “may forestall resort to the market”); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (Commerce Clause allows Congress to regulate decisions not to engage in transactions with persons with whom plaintiff did not wish to deal). Similarly, plaintiffs in this case are participants in the health care services market. They are not outside the market. While plaintiffs describe the Commerce Clause power as reaching economic activity, the government’s characterization of the Commerce Clause reaching economic decisions is more accurate.

Judge Steeh’s decision is a competent and professionally produced example of carefully reasoned liberal statism, and very much represents the Keep-the-Constitution-in-Exile reasoning that will be used to defend Obamacare when the various state lawsuits eventually reach the Supreme Court.

The New Federalism and Rational Basis casuistry will meet again in the nation’s highest court before terribly long.

Ilya Somin, at Volokh, pessimistically believes the mandate is more likely to be upheld than not.

I think we have the better reasoning and a narrow conservative majority on the Court, backed by a national negative consensus on Obamacare. I’m not so sure we are going to lose.

Canadian-born Dahlia Lithwick is Slate’s jurisprudential authority and commentator on Supreme Court decisions. Her response to a recent statement by Christine O’Donnell demonstrates both Lithwick’s lack of regard for Constitutional fidelity and her general unfamiliarity with its text.

It is understandable, I suppose, that someone who grew up in Canada might be a little vague on the fine points of the American Constitution and legal system, but it does seem ironic to say the least that she could graduate from Yale and Stanford Law School and be unacquainted with Marbury vs. Madision.

It is often observed that our establishment media characteristically features a perspective differing radically from the viewpoint of most ordinary Americans. It just might be that the prominent contributions of so many not-genuinely-assimilated foreign-born journalists to the commentary of the American establishment plays a significant role in moving the consensus of the elect away from the American mainstream toward the left.

I have been fascinated by Christine O’Donnell’s constitutional worldview since her debate with her opponent Chris Coons last week. O’Donnell explained that “when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional.” How weird is that, I thought. Isn’t it a court’s job to determine whether or not something is, in fact, constitutional? And isn’t that sort of provided for in, well, the Constitution?

Hat tip to Adam Freedman.

Death of Achilles, Villa Reale, Milan

Louis Case, at American Thinker, points out that the complicated Machiavellian shenanigans needed to get Obamacare through Congress inevitably include the potential legal seed of the destruction of the entire bill.

Virginia’s lawsuit argues that the federal government has no constitutional authority to require individuals to purchase health insurance policies.

Virginia is asserting that certain portions (that is, the personal mandate) of ObamaCare are unconstitutional. If Virginia prevails, it leaves the question of what happens to the rest of the ObamaCare statute. This is where the concept of severance comes in. Normally, all comprehensive laws contain a boilerplate severance clause: it says that if any portion of the law is found to be unconstitutional, that portion is severed from the rest of the law — that is, the rest of the law stands.

But ObamaCare contains no severance clause. Virginia is asserting that if it prevails on its substantive claims, the whole law is unconstitutional. (If Virginia does not prevail, any one of the twenty-plus legal challenges have the same severance argument available.)

If a severance clause is normal boilerplate, why does not ObamaCare contain one? This is where Scott Brown’s election enters. Recall that the House passed its version of ObamaCare. On Christmas Eve, after much horsetrading and bribing, the Senate passed its version. The Senate version was not drafted to be in its final form; it was drafted to get 60 votes. Normally, these bills would be reconciled in a conference committee, and the final version would have to be voted on again with 60 votes in the Senate. However, before it could be sent to conference and reconciled, Scott Brown won in Massachusetts — a reconciled bill could no longer get 60 votes! That is why the House had to vote up or down on the Senate bill, which was basically a draft without the normal boilerplate inserted.

As Virginia argued in its Memorandum (Pages 24 to 28), the presence of a severance clause raises a presumption that Congress did not intend the whole statute to depend on the constitutionality of any particular clause. But with no severance clause, they are not entitled to that presumption. A court cannot sever the offending clause on its own if the statute would not function as Congress intended.

But, of course, there is no court case, no legislative or judicial process, no actual involvement of the US Constitution at all. We have instead the occult operations of the infinitely labyrinthine and corrupt zoning and building permit processes of New York City doing whatever it is they do outside of our observation and understanding, and we have the sideline sport of Americans forming up into teams rooting for and against the construction of an Islamic victory monument within the no-longer-present shadow of the fallen World Trade Center towers. The fashionable community of treason is passionately determined to prove their moral superiority by defending the rights of our overseas enemies to raise the banner of the crescent and the serpent over Lower Manhattan, and normal Americans are –as usual– appalled at the insolence and disloyalty of our elite. I find this particular rehearsal of a by-now-only-too-familiar comedy amusing though, because the outcome and comparative strengths of the opposing factions are only too obvious. The Ground Zero Mosque will never be erected. And the community of liberal lemmings will discover, too late, that all that they accomplished was to drive a few more nails in the coffin of everything they hold dear by a particularly effective demonstration in front of the entire country of exactly how demented and offensive they really are.

National Review Online expresses justifiable indignation at the latest case of judicial outrage.

It has been clear since before the beginning of the year that Judge Vaughn Walker of the U.S. District Court in San Francisco was on a mission to establish a federal constitutional right to same-sex marriage and thereby to overturn California’s Proposition 8, a constitutional amendment passed by the people of the state in 2008.

From his decision to have a “trial” of the “facts” in the case rather than proceed straightaway to legal arguments about the constitutional issues (a choice that surprised even the plaintiffs’ attorneys) to his attempt to stage a nationally televised extravaganza (brought to a halt by the Supreme Court) to his unconcealed bias in favor of the plaintiffs in virtually every aspect of the proceedings… , Judge Walker has been preparing us for a baldfaced usurpation of political power for quite a while.

What Walker did not prepare us for is the jaw-dropping experience of reading his sophomorically reasoned opinion. Of the 135 pages of the opinion proper, only the last 27 contain anything resembling a legal argument, while the rest is about equally divided between a summary of the trial proceedings and the judge’s “findings of fact.” The conclusions of law seem but an afterthought — conclusory, almost casually thin, raising more questions than they answer. On what grounds does Judge Walker hold that the considered moral judgment of the whole history of human civilization — that only men and women are capable of marrying each other — is nothing but a “private moral view” that provides no conceivable “rational basis” for legislation? Who can tell? Judge Walker’s smearing of the majority of Californians as irrational bigots blindly clinging to mere tradition suggests that he has run out of arguments and has nothing left but his reflexes.

But the deeper game Judge Walker is playing unfolds in those many pages of “fact finding” that make up the large middle of his ruling. There, through highly prejudicial language that bears little relation to any fact, the judge has smuggled in his own moral sentiments — in precisely the part of his opinion that would normally be owed a large measure of deference in the appellate courts.

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William A. Jacobson is optimistic that Judge Walker’s decision will be overturned.

The politics of this opinion probably could not come at a worse time for Democrats. There is no groundswell of support for gay marriage, with even Obama having expressed the view during the campaign that marriage is between one man and one woman. The opinion attempts to short-circuit the political process by finding a constitutional right which most people — even people who might support gay marriage — do not recognize.

At the end of the day, I do not expect this decision to survive constitutionally, and the supporters of gay marriage may rue the day that they sought to impose a solution from the courts of law rather than the court of public opinion.

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I’m less sanguine about Justice Kennedy’s likely ruling myself, though I think rational constitutional interpretation has at least a chance. I do think Erik Erikson is right in observing that, in the end, Americans can just add a clarifying amendment to the US Constitution and put a stop to the nonsense once and for all.

39 states have banned gay marriage.

It takes only 38 states to ratify a constitutional amendment.

A majority of the American public and three-quarters of the American states have been overruled by one federal judge in San Francisco. To be fair, the ruling only affects Northern California. It will be appealed. The odds are, for now, that the judge will be overruled.

But again and again the political elites in this country think they know best. From the mosque at Ground Zero to gay marriage to Obamacare, the majority of the people and states are forced to deal with a minority that does not respect them and democratic and legal institutions that oppose them.

If a minority of political elites and liberals can impose their will and values on a majority sufficient enough to amend the constitution, it is time for the majority to respond with constitutional force.

In Thomas Jefferson’s words, “In questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.”

The Massachusetts Legislature passed a bill intended to bypass the US Constitution and eliminate the function of the Electoral College in presidential elections.

Illinois, New Jersey, Hawaii, Maryland, and Washington have already passed similar legislation as advocated by National Popular Vote Inc.

Can’t you just picture the inevitable denoument in which, a few years down the road, the liberal democrat wins the Electoral College despite the conservative Republican gaining a majority of the popular vote, whereupon there is some serious scrambling in Massachusetts, Illinois, New Jersey, Hawaii, Maryland, Washington and so on?

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With its budget in bad shape, the state of Washington casually gave away an attractively located 10-acre island it purchased for $211,000 nineteen years ago, despite the fact that the island could have been sold for for millions.

Robert Eugene Simmons Jr. observes that last Thursday’s $20 billion settlement by BP was forced by the White House without anything resembling due process, the color of law, or Constitutional authority.

There is no doubt that the oil spill produced by the Deepwater Horizon rig and BP is a disaster of monumental ecological proportions. There is no doubt that the spill has caused the loss of livelihood for fishermen, hotel owners, beach surfboard renters and millions of other people on the gulf coast. There is also no doubt that it is the responsibility of BP to get the well shut off and pay for the cleanup. Finally, there is no doubt that a full investigation should be conducted into how the spill happened, the role of BP and of the government in the spill and the mistakes made in the cleanup. It is important that we find out what caused the blowout, how it could have been prevented, why the cleanup was so slow in getting started, why foreign experts were not allowed to help, why the EPA is blocking applications of products as simple as hay which could soak up oil, and why Governor Jindal and others were disallowed the means to protect their shore lines by government bureaucracies.

However, none of these events or responsibilities gives the president the power to suspend the constitution, revoke the rule of law or demand payments from a company. In fact the $20 billion fund “demanded” of BP by the Obama administration does just that. To understand let’s review the facts around the fund.

The fund will contain $20 billion to ostensibly pay for cleanup efforts and provide compensation to those affected by the spill. Kenneth Feinberg, who is also known as Obama’s “pay czar”, will administer the fund. Mr. Feinberg, a political appointee, will have the final say so on who will receive money from the escrow funds and how much they will get paid. It is unknown what rules of evidence will be in force, what documentation will need to be provided and what the priorities and process for payout will be. Furthermore, so far there are no known constraints on what the fund can be used for; since Obama clearly views alternative energy as a long-term solution to oil spills in general, it is possible that he could direct part of that 20 billion to alternative energy research. In short, this is a huge 20 billion dollar fund under the sole direction of a single guy without even congressional oversight. Disturbed yet?

If you try to find the power in the constitution that allows Obama to do this, you will be even more disturbed. In this case the government can’t even claim the commerce clause of the constitution as legal basis because the commerce clause, even misinterpreted as it is, only applies to the legislature, not the executive branch. Where exactly in the enumerated powers of the constitution does the president have the right to “demand” money from a corporation, deem them guilty of a crime and extract a settlement amount? The short answer is “nowhere.”

Another pertinent question is what BP got out of this deal with the president. It is unlikely that they simply agreed to just drop $20 billion in escrow without agreements, legal documents or contracts specifying the use of the money. If BP obtained immunity from prosecution in exchange for the money then President Obama just violated extortion laws. Will we get full disclosure on the deal given to BP for this fund? What about the payouts themselves? Will we be allowed to be a watchdog over those funds? At this time it doesn’t look like it.

Rafting guide rescues 13-year-old girl on Clear Creek, Colorado without waiting for the authorities and is arrested for “obstructing government operations.”

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Honolulu Elections Clerk says he checked and there is no Obama birth certificate. Not exactly definitive proof.

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Wilder Publishing offers a booklet containing the texts of the US Constitution, the Declaration of Independence, and the Articles of Confederation with a warning label reading:

Parents might wish to discuss with their children how views on race, gender, sexuality, ethnicity and interpersonal relations have changed since this book was written before allowing them to read this classic work.

Hat tip to Karen L. Myers.

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Afghan President Karzai reported to doubt that America can win.

As Dean of Harvard Law School, Elena Kagan not only moved Harvard away from teaching the case method (invented at Harvard circa 1870), she eliminated Constitutional Law from the list of required courses.

As CNS reports, American Constitutional Law was demoted in favor of more international perspectives.

[I]n a 2006 Harvard news release explaining the changes, Kagan explained the move away from constitutional law was deliberate: “From the beginning of law school, students should learn to locate what they are learning about public and private law in the United States within the context of a larger universe — global networks of economic regulation and private ordering, public systems created through multilateral relations among states, and different and widely varying legal cultures and systems.

“Accordingly, the Law School will develop three foundation courses, each of which represents a door into the global sphere that students will use as context for U.S. law,” the guide said.

Among the three new required courses Kagan introduced, one focuses on public international law, involving treaties and international agreements, and the second is on international economic law and complex multinational financial transactions, according to a Harvard news release.

But the third course, on comparative law, “will introduce students to one or more legal systems outside our own, to the borrowing and transmission of legal ideas across borders and to a variety of approaches to substantive and procedural law that are rooted in distinct cultures and traditions,” the release said.

What could be a more eloquent demonstration of the precise level of deference to the US Constitution Ms. Kagan would bring to the Supreme Court?

How do you pass a wildly unpopular bill as your voting strength erodes and your coalition crumbles?

As the Hill explains, Rep. Louise Slaughter (D- 30 NY), Chairman of the House Rules Committee, has devised a bizarre stratagem, which is being referred to as the “Slaughter solution.” Democrats plan to vote in the Senate that they deem the Senate bill to have passed the House, when it actually has not been voted on by the House.

House Speaker Nancy Pelosi is leaving the door open on using a controversial procedure to move healthcare through the House.

The process would allow the House to “deem” the Senate bill passed when it votes on a package of changes to that legislation, perhaps as early as this weekend.

The procedure involves crafting a rule allowing for consideration of a reconciliation “fixers” bill that deems the Senate bill already approved by the House. Aides to the Speaker said the option is “under consideration.”

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The only problem with all this is that it is flagrantly and outrageously unconstitutional.

Michael W. McConnell, a Constitutional Law professor at Stanford, explains the problem.

[The Slaughter solution] may be clever, but it is not constitutional. To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a “Bill” to “become a Law,” it “shall have passed the House of Representatives and the Senate” and be “presented to the President of the United States” for signature or veto. Unless a bill actually has “passed” both Houses, it cannot be presented to the president and cannot become a law.

To be sure, each House of Congress has power to “determine the Rules of its Proceedings.” Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.

The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the “exact text” must be approved by one house; the other house must approve “precisely the same text.”

These constitutional rules set forth in Article I are not mere exercises in formalism. They ensure the democratic accountability of our representatives. Under Section 7, no bill can become law unless it is put up for public vote by both houses of Congress, and under Section 5 “the Yeas and Nays of the Members of either House on any question . . . shall be entered on the Journal.” These requirements enable the people to evaluate whether their representatives are promoting their interests and the public good. Democratic leaders have not announced whether they will pursue the Slaughter solution. But the very purpose of it is to enable members of the House to vote for something without appearing to do so. The Constitution was drafted to prevent that.

The final obstacle to democrat passage of the Health Care Bill may yet prove to be the Supreme Court.

If Obamacare is enacted via deeming as the Slaughter solution proposes, avoiding an actual vote on the Senate bill in the House, and Barack Obama goes ahead, signs it, and claims that it is now the law of the land, Republicans can walk right over to the Supreme Court and ask for a ruling on the constitutionality of deeming instead of voting. Any bets on how that is going to turn out?

The courage of the elite: Metropolitan Museum prudentially removes images of Mohammed and renames Islamic Galleries.

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High rise buildings in Mecca make it evident that roughly 200 mosques are pointing in the wrong direction.

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Crime pays in Norway.. Foreigners qualify for welfare after a year in jail. If they serve three years, they get health benefits and qualify for old age pension. Hat tip to the News Junkie.

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Lawsuit begins in California federal court contending that the US Constitution mandates Gay Marriage. Wouldn’t Gouverneur Morris be surprised?

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Obama postpones State of the Union address in order to avoid preempting season opener of Lost.

The Wall Street Journal reported yesterday: The U.S. pay czar will cut in half the average compensation for 175 employees at firms receiving large sums of government aid, with the vast majority of salaries coming in under $500,000, according to people familiar with the government’s plans.

As expected, the biggest cut will be to salaries, which will drop by 90% on average. Kenneth Feinberg, the Treasury Department’s special master for compensation, is expected to issue his determinations today.

Professor Bainbridge explains just how outrageous, unconstitutional, and violative of fundamental principles of law the Obama Administration’s business decrees are.

There really ought to be more outrage about this proposal. As a letter to the editor in today’s WSJ (Wednesday, 10/21 — the Journal does not archive Letters to the Editor, so Professor Bainbridge was remiss in failing to credit Peter Kirchman of Bay City, Michigan for this excellent contribution to the debate – DZ) aptly observed:

To those who would defend the government’s ability, justification and right to negate Ken Lewis’s contract and hijack his pay (“The Fall Guy,” Review & Outlook, Oct. 2), I offer a John Adams quote found in David McCullough’s book “John Adams.” Adams stopped at a tavern for lodging. He happened to overhear several locals discussing British actions regarding taxation. One man says to the rest, “. . . if Parliament can take away Mr. Hancock’s wharf and Mr. Row’s wharf, they can take away your barn and my house.”

Mr. Lewis might already be considered rich, as was Mr. Hancock, and the amount of severance may seem to be outrageous, but to you supporters of this confiscation I ask: If you grant the federal government’s pay czar the power to confiscate or alter the pay of 175 Americans today, whose barn or house is next?

The point is exceptionally well taken. The Obama administration has shown a shocking disregard for the rule of law when contract rights interfere with the administration’s ability to reorder the American economy as it sees fit.

As Todd Zywicki observed when Obama threw Chrysler lenders under the bus:

The rule of law, not of men — an ideal tracing back to the ancient Greeks and well-known to our Founding Fathers — is the animating principle of the American experiment. While the rest of the world in 1787 was governed by the whims of kings and dukes, the U.S. Constitution was established to circumscribe arbitrary government power. It would do so by establishing clear rules, equally applied to the powerful and the weak.

Fleecing lenders to pay off politically powerful interests, or governmental threats to reputation and business from a failure to toe a political line? We might expect this behavior from a Hugo Chávez. But it would never happen here, right?

Until Chrysler. …

The Obama administration’s behavior in the Chrysler bankruptcy is a profound challenge to the rule of law. Secured creditors — entitled to first priority payment under the “absolute priority rule” — have been browbeaten by an American president into accepting only 30 cents on the dollar of their claims. Meanwhile, the United Auto Workers union, holding junior creditor claims, will get about 50 cents on the dollar.

And then Obama bullied GM’s bondholders to the extent that even the Obamabots on the Washington Post‘s editorial board were moved to protest that “the Obama administration is coming dangerously close to engaging in financial engineering that ignores basic principles of fairness and economic realities to further political goals.