The Supreme Court Drops The Ball … Again

The current US Supreme Court (SCOTUS) has handed down some really excellent decisions, such as in the Heller, McDonald, and Citizen’s United cases. They’ve also managed to hand down some real stinkers. The Obamacare case comes immediately to mind.

Now they can add the case of Perry v. Hollingsworth, the case about California’s Proposition 8, to their Hall of Shame.

th[6] (2)Rather than deciding the merits of the case, the majority dismissed the case and remanded it back to the Ninth Circuit Court of Appeals, meaning that the Circuit’s finding that the Prop 8 ban was a violation of federal constitutional rights remains in effect. They did this on the basis that, since the state’s officials – the Governor (Schwarzenegger) and Attorney-General (Jerry Brown) –  refused to do their duty to uphold and defend the properly-enacted ballot initiative, the proposition’s proponents who did actually work the case had no “official” position (“standing”) that entitled them to have their case heard in the court.

SCOTUS held that the defenders weren’t “harmed”, another issue that goes to standing. But I believe that SCOTUS did, in fact, err in holding that the Prop’s defenders didn’t have standing. Their group had expended considerable time and financial resources in getting Prop 8 enacted, and to have two government hacks — Schwarzenegger and Brown — refuse to do their jobs and uphold and defend the law — a function of their office — meant that they (the defenders) suffered tangible injury, which gives them standing.

Further, nowhere in the US or California Constitutions are executives endowed with the power to determine the constitutionality of ANY issue. That’s properly the purview of the appropriate courts. Their job is limited to executing and defending properly-enacted laws, which they clearly failed to do. If this case is an example of the “proper” execution of the politicians’ duties, that raises interesting questions: Why do we even bother having a proposition process at all? Or legislatures? Why don’t we just coronate Caesars and have done with the whole charade?

Additionally, as Kennedy pointed out in his excellent dissent, it’s not at all unusual for interested parties to represent such issues when state officials refuse to do so; that the majority was wrong in applying the “Arizonans” case; and that the states have the right to allow other parties to have standing as the states are the bodies that determine such matters under state law and the California Supreme Court had approved the defenders’ standing.

The initiative process in California was enacted in order to give the people a direct voice in government and allow them recourse if arrogant or corrupt politicians failed to address their concerns. By remanding the case because the politicians failed to defend the law, essentially SCOTUS invalidated the entire referendum process, depriving the people of California of any recourse against officials who refuse to carry out the duties of their office.

th[8]Now, I do think that the defenders made a strategic error in not trying to pursue a Writ of Mandamus while the issue was still at the state level. Such a Mandamus would have forced Schwarzy and Brown to defend the law, or appoint some other “official” government representative or agency to do so, depriving SCOTUS of their escape hatch.

There’s yet another problem with this ruling, too: Prop 8 is unconstitutional on Federal grounds in California, while identical laws on the books in many other states are unchallenged and therefore still constitutional by default. SCOTUS has allowed a double standard to come into existence, where constitutional rights in California are different from every other place in the country.

In the past when the Federal courts have ruled on same-sex marriage cases they’ve held that such state bans are constitutional. When the cases were appealed to SCOTUS, most notably 1972’s Baker v. Nelson, SCOTUS hasn’t granted cert and has let the Circuit decisions stand.

Through their actions in this case, they’ve allowed two definitions of “constitutionality” to come into existence: in the Ninth Circuit and California, the bans are unconstitutional. In the rest of the country, they’re not. That’s an absurd and untenable condition.

Interestingly, there are a couple of other cases working their way up which don’t have this specious “standing” issue in play, particularly Sevcik v. Sandoval, a Nevada case so it’s also in the Ninth Circuit. So, if the Ninth again holds the ban to be unconstitutional, SCOTUS will have to deal with the issue again, and won’t be able to duck the issue over the specious “standing” issue as the state’s officials are actually fulfilling their duties to defend the case.

So this clearly isn’t over yet. Further, there’s going to have to be some kind of resolution as to the inconsistency of the state of the law in different Circuits as to constitutionality. The Constitution demands “equality”, and right now that’s not the case at all.

Instead, we now find ourselves with the issue of constitutionality in this country completely unresolved. This is an absolutely terrible decision, one grown out of cowardice on the part of SCOTUS to actually face and resolve the issue. I give them a big, fat “F”.

© Brian Baker 2013

The UN Gun Control Treaty And You

(Dick Morris Is Nuts)

Political commentator Dick Morris (among others) has been running around all over the place bleating about how the passage of the United Nations’ Arms Trade Treaty (ATT) is going to result in the loss of the gun rights currently enjoyed by Americans under the Second Amendment to our Constitution.

He was doing it again on Sean Hannity’s radio show on Friday, 3 Aug. Here’s Morris’s thesis:

Obama signs the treaty (which has currently died in the UN because of lack of agreement, actually) after he’s re-elected. For a treaty to bind the United States it must be ratified by 2/3 of the Senate, per the Constitution. But according to Morris – who acknowledges that such ratification is virtually impossible – under the Vienna Convention on the Law of Treaties if the Senate fails to act on ratification the ATT will automatically take effect solely on the basis of Obama’s signature, and that Harry Reid will refuse to bring it to a vote if the Democrats retain control of the Senate. The treaty then becomes the “supreme law of the land”, superseding the Constitution and the Second Amendment and enabling Draconian gun laws, confiscation, the sky falling, etc.

Phew!… Follow me so far? Okay.

Morris’s thesis is so full of holes that if it were cheese it would be a premium Swiss. I don’t know where Morris comes up with this stuff. He must just “hear” something and, without doing any research at all, run wild with it. Anyway, here are the facts.

The Vienna Convention went into effect in 1980, but unfortunately for Morris’s thesis, even though this country is a signatory, the Convention has never been ratified by the Senate and so has absolutely no force and is not binding on this country, just like any other treaty that isn’t ratified. Period.

Further, there’s nothing that I’ve read in the Vienna Convention that does what Morris claims, anyway. Nothing at all about unratified presidential signatures making a treaty binding on a country whose own constitution requires treaty ratification. So his theory of an Obama signature on the ATT without Senate ratification actually meaning anything is ridiculous.

Morris also clearly doesn’t understand the Supremacy Clause of the Constitution. Let me quote it for you:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;…”

So far, so good. But here’s where the rubber meets the road:

“… and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

In other words, what it’s saying is that the Constitution, federal laws, and treaties take precedence over STATE laws and constitutions. That’s all. There’s not one syllable in there about treaties having more power than the Constitution itself.

The reality is that no treaty can be used as a de facto amendment to the Constitution, as the Constitution is quite specific about how it can be amended and allows only two methods: the clearly detailed amendment process requiring 2/3 ratification by the states, or a constitutional convention. Any treaty that conflicts with the Constitution or its amendments is automatically null and void.

And in fact, in the 1957 landmark case of Reid v. Covert the Supreme Court held exactly that, stating “this Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty,”.

It’s time for Morris and others Chicken Littling this issue (yes, I’m looking at YOU, NRA!) to drop it. It’s ridiculous and meaningless, and lying for political gain is no less disgusting coming from the Right than it is from the Left. Frankly, I consider it even worse, because we have the facts on our side. We don’t have to resort to lying and political chicanery.

This stupid UN treaty has no more chance of affecting our national gun laws than I do of beating Shaq at basketball.

© Brian Baker 2012

A Manifesto To Save America

 

“A democracy will continue to exist up until the time that voters discover that they can vote themselves generous gifts from the public treasury. From that moment on, the majority always votes for the candidates who promise the most benefits from the public treasury, with the result that every democracy will finally collapse due to loose fiscal policy”

                                                                       Alexander Tytler   1747 – 1843 (Pop. Attrib.)

When the people find that they can vote themselves money, that will herald the end of the republic. Sell not liberty to purchase power”

                                                Benjamin Franklin  1706 – 1790

People familiar with my writings, both in my blogs and in various Letters To The Editors and Guest Columns published in newspapers, know I’ve long maintained that this country is far down along the path to self-destruction. Back in February 2008, at my Townhall blog, I wrote an essay entitled “Bread and Circuses” (Read it here) in which I drew parallels between our country today and the fall of the Western Roman Empire.

The Roberts Court

Most recently, we have the Supreme Court (SCOTUS) discovering and endowing the government with vast new powers to use taxation to force people to behave in certain ways, and enter into contracts to purchase goods and services. For the first time in our history, a tax can be imposed on people for not doing something. It’s as if King George imposed a tea tax on the colonists for not drinking tea.

To achieve this repugnant decision, as I’ve described previously, Chief Judas Roberts ignored all bounds of reason, logic and constitutionality in order to side with the liberal “ignore the Constitution” faction of the Court. Whatever his motives – and speculation on that runs rampant – neither Roberts nor any other Justice will ever suffer any consequences for their actions or decisions because the Constitution guarantees them lifetime tenure.

Then we have the problem with the inequitable nature of our current tax system which has led to debts and deficits that will inevitably bankrupt this country if not resolved somehow. Almost 50% of the populace pays little to no federal income taxes at all, and the top 5% of earners – those earning anything over a mere $154,643 (statistics) – pay almost 59% of all the income tax money collected. Yet they’re still castigated for “not paying their fair share”.

Meanwhile, that bottom 50% pays almost nothing at all but still has an equal say, through their power to vote, in how tax burdens are allocated and the funds spent. Naturally, as they really have no skin in the game as far as fiscal prudence is concerned, they’re going to be inclined to vote for their own economic self-interest, meaning that they’re all for robbing Peter to pay Paul, since someone else is always going to be the Peter that pays their Paul. Paul really doesn’t care if Peter goes broke.

Further, what’s going to happen when the tax non-payers outnumber the taxpayers? Then we’ll have a situation akin to three foxes and a chicken voting on what’s for dinner. It won’t be pretty, and at that point this country will be completely doomed.

I believe this country’s only hope of salvation lies in a major restructuring of how we do things, and that can only be properly enacted by amending the Constitution. Therefore I’d like to propose the following four constitutional amendments.

“Judicial Accountability Amendment:  After 12 years of serving on the federal bench, each judge including Supreme Court Justices shall be replaced, unless reconfirmed by the US Senate.”

Hopefully, that would force the judiciary to be more responsive to the actual Constitution, but no matter what it would impose accountability on the Mandarins In Black Robes.

“Flat Tax Amendment:  Every person who receives income, from whatever source and without exception, shall have that income taxed at the same rate of X%. The tax rate may be changed by Congress by votes of 2/3 in each House.”

The “X” rate of taxation would be determined during the amendment process, but this would certainly eliminate the inequality of tax rates and burdens. Further, it would eliminate the motivation of those with no tax exposure to burden those who actually do pay taxes with ridiculous obligations that simply can’t be met.

Everyone would then have at least some skin in the game.

Further, the super-majority requirement to change the tax rate would force some fiscal sanity on Congress, and force them to start to cut spending. Raising the tax rate would become a VERY politically risky move… as it should be.

“Voter Eligibility Amendment:  No person who is exempt, for whatever reason, from paying income taxes shall be eligible to vote.”

A companion piece to the prior Amendment, this would assure that anyone who might still escape any tax obligation would also lose their ability to influence the outcome of legislation that forces everyone else to pay up.

“Tax Legitimacy Amendment: Taxes shall be imposed solely to raise revenue for the legitimate function of government as defined in the US Constitution. Any tax or spending bill must cite the appropriate and legitimate constitutional authority for that program or expenditure. No tax shall be imposed whose purpose is to influence the behavior of citizens, either individually or as a group; nor shall taxes be imposed as a penalty.”

The most immediate effect of this Amendment would be to void Obamacare and repeal the recent SCOTUS decision, much like the 14th Amendment killed the Dred Scott decision; and it would prevent the kind of laws – as well as judicial decisions – that grant such unbridled power to the government that the people’s ability to make their own decisions is completely pre-empted.

Unless these amendments – or something very much like them – are enacted, this country as we know it is finished. We may still be in existence physically, but we’ll ultimately devolve into a Euro-trash “social democracy” like Greece. Unfortunately, I don’t believe the political will exists in this country to take those necessary steps.

I hope I’m proven wrong, but I am not sanguine…

© Brian Baker 2012

The Obamacare Decision’s In. What’s Next?

Chief Judas John Roberts

Well, as I noted in last week’s essay, the stunning decision of the Supreme Court (SCOTUS) was handed down last week on the Obamacare challenge, and Chief Judas Roberts – traitor to the Constitution and conservative principles – has granted the Federal Government expansive new powers to regulate behavior through the power to impose taxes; not only on what you actually do, but also on what you don’t do.

Another aspect of this new authority is that since exercise of this power is through the taxation process, such laws don’t require the usual 60 votes in the Senate required for most bills. It’s tax law, and as such can be passed by a simple majority in that chamber (as has always been the case with any law in the House). Thus has SCOTUS ruled.

That means that come November, if the GOP retains the House, wins the Presidency, and holds 50 seats in the Senate after the election (Romney’s VP would give the GOP a Senate majority as President of the Senate), they’ll be able to pass any such law they want without any fear of it being blocked by the Democrats (in the exact same manner as Democrats enacted Obamacare in the first place).

This does open up some interesting possibilities.

I’d like to propose a law that requires every eligible adult to own a gun. This would accrue a benefit to the country under the General Welfare Clause, as statistically it’s been shown that the more law-abiding citizens own guns, the lower the crime rate is. Further, gun ownership is actually a right enumerated in the Bill of Rights, as opposed to “healthcare”. Anyone who refuses to own a gun would see a “tax surcharge” penalty on their federal income taxes.

How about an abortion tax? You’d still be able to exercise your “right” to abort your baby; you’d just be dinged a few thousand bucks in a “tax surcharge” if you did it. There’s no doubt this would accrue benefits to the country’s “general welfare” as it will cut into the numbers of unborn babies slaughtered in the womb, not to mention the benefits accrued to the babies themselves. And think of the added revenue!

There are endless possibilities, and the limits have been removed. Get together with your friends. Think up a policy you’d like to see enacted. Turn it into a drinking game!

Then raise a toast to our socialist countrymen who have given us this wonderful opportunity.

©Brian Baker 2012

It’s Official! We Live In A Tyranny!

I have to admit; I called this one completely wrong, and have been doing so for almost three years. When Obamacare was first proposed by the Democrats, herded by Nancy the Red Pelosi and Dingy Harry Reid, I forecast – loud and often – that the mandate that people buy health insurance or face financial penalties imposed by the government would never pass judicial scrutiny. How could it? What in the Constitution empowered the government to force people to buy products or enter into contracts to purchase certain services?

Well, in a terrible decision handed down today by the Supreme Court Jesters, we found out. According to the majority opinion, written by the Chief Justice (John Roberts), it turns out that the government has the power to pretty much regulate any behavior they want, as long as their enforcement mechanism is called a “tax”.

Chief Justice John Marshall

In the Supreme Court case of McCulloch v. Maryland in 1819, Daniel Webster made the argument, with which Chief Justice John Marshall agreed, that “the power to tax is the power to destroy” and overturned Maryland’s tax on banks. In today’s decision, however, Roberts wrote that the “power to tax is not the power to destroy while this Court sits”, in direct contradiction to the man generally considered to be this country’s greatest Chief Justice.

How he comes to such a conclusion is entirely beyond me, and defies all reasoning and common sense.

The tortured rationalizations in Roberts’s controlling majority opinion rely on two absurd contentions:

1.  That a tax penalty isn’t enforced by imprisonment, and

2.  the tax penalty isn’t “onerous”.

Well, refuse to pay the tax and see whether or not you end up in prison. And what may not be “onerous” to Roberts – with his six-figure income and government benefits – may well be “onerous” to a couple of young married kids barely squeaking by while juggling a mortgage and car payments while underemployed – if employed at all – in this terrible economy.

According to Roberts, the government is perfectly within its rights to use tax law to “encourage” certain behaviors, and discourage others. So… what can we anticipate moving forward?

How about “weight penalties”? If your body mass index (BMI) exceeds certain levels, or if your weight falls outside certain arbitrary parameters for your height as set by the government, can you expect a “tax surcharge”? Why not?

How about a “tax surcharge” for smokers? After all, the government, in the interest of cost control for the “public obligation” of controlling healthcare costs, now has a vested interest in your behavior.

How about a “tax surcharge” if you had a traffic ticket that year? Hey… that’s “risky behavior”, and you could incur “healthcare costs” if you get in an accident, right?

What about if you want to buy a foreign car? The government has determined that the American car industry is “too big to fail”, and therefore if you “choose” to buy a foreign car, you’re contributing to the risk that American auto makers will fail. So I guess you should pay a “tax penalty” for not buying American.

Don’t laugh. Way back when the hysteria about second-hand smoke was taking place I predicted that if the penalties being considered against tobacco companies ever passed into law we’d ultimately see similar actions taken against other unpopular behavior, like fast food consumption. People laughed.

Well… look around you. Laws against trans-fats in foods (bye-bye, flavor), Bloomberg’s limits on soft drink sizes in New York, pate banned in Commiefornia, San Francisco’s ban on Happy Meal toys at McDonald’s, on and on and on.

The reality is that the endorsement of the mandate by the Supremes opens the door for government to regulate virtually every aspect of human behavior through the abuse of the power to tax.

Justice Marshall was completely right; in this case, the power to tax has completely destroyed the right of free choice.

© Brian Baker 2012