Hot, Hot, Hot

And by that I mean:   this:

Not this:

A Likely Story

And by that I mean:  if a business needs government subsidy, the reason is almost inevitably that it cannot get private investors to invest in it; and the reason for that is almost inevitably that its products are not marketable at a profit.   So, when government subsidizes something -- in this case another solar energy company -- it's a very likely story that the business will end up going belly up and the taxpayers will end up eating the loss:

In a decision that will surprise few energy observers, Abound Solar, a Loveland, Colorado-based maker of thin-film cadmium telluride solar modules has announced it will file for bankruptcy protection and suspend its operation. It’s the latest failure of an energy company that had received funding under the Department of Energy’s loan program. 

Although Abound had received a $400 million DOE loan guarantee for building solar-panel manufacturing in Colorado, the company says it has used only $70 million of the funding and has not used any DOE funds since August 2011.

In Fairness... Does the Market Love Obamacare?

After bouncing down yesterday, it's bounced back up.   

Or does the market love certainty, regardless of what the government policy is?

Or, on the other hand, is the market reacting to the deal on the Euro?

Either way, I wouldn't bet on the long-term positive effects of Obamacare on the American economy.  

Jay Cost on Roberts

Jay Cost also echoes my point from yesterday about Roberts' long-term chess move with the Obamacare decision:

Roberts actually secured two, hugely important consitutional victories (if not policy ones) for conservatives. He lmited the scope of the Commerce Clause in a meaningful way, spoiling the liberal hope that it confers upon the Congress a general police power. He also won a significant victory for supporters of our dual sovereignty system; by striking down portions of the Medicaid expansion, he sent a clear message that there are limits to how the federal government can use money to boss the states around. These are two enormous triumphs in the century-long war over the principle that the Constitution forbids unlimited federal power.

Unfortunately, the chief justice did not go the whole nine yards and just repeal Obamacare. However, the voters can still attend to that in November!

The last point is the most important and probably entered largely into the Chief Justice's calculus.   He knew the obvious:   that a decision by the American people in the election to elect Romney as President and a Republican Senate and House would lead to the repeal of Obamacare and, importantly, would have much more legitimacy than the legal ruling of a 5-4 majority in the Supreme Court.   And he also knew the opposite:  that even if Obama was re-elected, in the fullness of time, once the Rube Goldberg contraption is implemented, people will realize what a mistake it was.

He also knew that, at age 57, he probably has 25 more years as Chief Justice, and lots more decisions to make that might be very difficult:

• on affirmative action in hiring and college admissions;
• on campaign financing and free speech;
• on the limits of Presidential power to prosecute undeclared wars;
• on privacy in the Internet age;
• on abortion, euthanasia and Life issues
• on the limits of current Congress' ability to borrow money from and impose liabilities on future generations of Americans.

In short, his long-term credibility, and the Court's, does really matter.

Responsibility and the Individual Mandate

The level of vitriole from some on the right aimed at John Roberts for the decision on the individual mandate is interesting.   One thing that bothers me though is the degree to which some conservatives have elevated the right not to buy health insurance to something almost sacred.   How dare the federal government require me under threat of a penalty to buy health insurance?   I should have the right not to have health insurance if I want to!

Well, of course, you have that right, and ought to have that right, and the federal government shouldn't be able to take away that right.   But let's not forget that it's a right to be extraordinarily stupid and irresponsible and selfish.   There's a word for adults who "choose" not to purchase insurance and then expect the rest of us to pick of the tab when they show up at the emergency room.   The word is... assholes.

To me the most effective mandate would be this... instead of penalizing people with a modest financial penalty if they don't have insurance, how about we just refuse to give them medical treatment if they can't pay for it?   If you don't have fire insurance and your house burns down, you're out of luck.   If you don't have flood insurance living next to the Mississippi, sometimes we do bail you out, but we shouldn't.   If you don't have life insurance when you die, your wife and children are probably going to be screwed.   So why should you be able to get away with spending health insurance money -- for the Regular Guy, it's about $23,000 a year for his family -- on cars and computers and vacations and crack cocaine for all I know, and still be able to get world-class health care if you get cancer, and all of it on my nickel?

***

Oh, and by the way, the talk of the "right" not to buy health insurance on the right reminds me a good deal of the talk of the "right" to an abortion on the left.   They are both "rights" to do something that is extraordinarily mean, selfish, irresponsible and stupid.   You can argue that people ought to have that right without acting like it's a good thing that they exercise it.

***

In other words, the following are not mutually exclusive positions:

1. Roberts arguably got it right as a matter of constitutional law.  
2. Obama and the Democrats got it very, very wrong as a matter of public policy.
3. Although the federal government has the power under the constitution to tax individuals to coerce them into preferred behaviors (not smoking, not using gasoline, not going without health insurance), it's a power the government ought not to have and ought to use only very sparingly.
4. Just because the federal government ought not to be able to tell you to buy health insurance doesn't mean that you're not a jerk for going without it.

Roberts' Long Game

Sean Trende makes the point I made yesterday about Chief Justice Roberts' "long game":

Roberts has basically done what John Marshall did [in Marbury v. Madison]: Insulate the court from criticism of bald partisan bias and infidelity to, as he once put it, calling balls and strikes. He’s earning plaudits from the left. Though the right is grumbling, I suspect they won’t be doing so for long

This is not the last battle to be fought on the Roberts Court. It might not even be the most significant. In the next term, for example, the court is being asked to reconsider its affirmative action jurisprudence. There are almost certainly five votes to overturn court rulings from a decade ago upholding some forms of affirmative action.

Following that, the court will face a variety of tough decisions. There are probably five votes to uproot the entire campaign finance system, a decision that would make Citizens United look like small fry. And there are probably five votes to invalidate Section 5 of the Voting Rights Act.

I don’t think invalidating the ACA would have affected the court’s legitimacy that much, at least outside of liberals in the legal academy. But taken as a whole, this series of decisions really might have irrevocably hurt the court’s reputation for independence.

But Roberts has something of an ace up his sleeve now. Accusations of hyper-partisanship are much harder to make against him, and he has more freedom to move on these issues.

Obamacare's Big Lie

In reading the Obamacare decision, one thing jumped out at me -- just how minimal the penalties are for not buying health insurance.   If it's a tax, it's not that much of one:

Beginning in 2014, those who do not comply with themandate must make a "[s]hared responsibility payment" to the Federal Government. §5000A(b)(1). That payment,which the Act describes as a "penalty," is calculated as a percentage of household income, subject to a floor based on a specified dollar amount and a ceiling based on the average annual premium the individual would have to pay for qualifying private health insurance. §5000A(c). In 2016, for example, the penalty will be 2.5 percent of an individual’s household income, but no less than $695 and no more than the average yearly premium for insurance that covers 60 percent of the cost of 10 specified services (e.g., prescription drugs and hospitalization). Ibid.; 42 U. S. C. §18022. The Act provides that the penalty will be paid tothe Internal Revenue Service with an individual’s taxes, and "shall be assessed and collected in the same manner" as tax penalties, such as the penalty for claiming too large an income tax refund. 26 U. S. C. §5000A(g)(1). The Act, however, bars the IRS from using several of its normal enforcement tools, such as criminal prosecutions and levies. §5000A(g)(2). And some individuals who are subject to the mandate are nonetheless exempt from the penalty—for example, those with income below a certainthreshold and members of Indian tribes. §5000A(e).

So, if you make $50,000, you'd pay a maximum of $1,250 in tax penalties if you decided not to buy health insurance.   If you are a young person making $20,000 a year or so, you'd pay a minimum of $695/yr.

THERE IS NO WAY THAT IS ENOUGH TO FORCE SOMEONE OTHERWISE DISINCLINED TO BUY HEALTH INSURANCE TO BUY HEALTH INSURANCE.  If I were young and healthy, I'd probably keep my money and pay the penalty, hoping I don't get sick, but knowing that, if I did, I could always get insurance because of the "must issue" requirements of Obamacare.   (Or I'd not pay... are there really going to be IRS agents to arrest non-compliers?   We can't police our borders, are we going to police Starbucks to arrest young health insurance scofflaws?)

So, Obamacare's Big Lie is not that the individual mandate was not a tax.   The Big Lie is that the individual mandate will force people to buy insurance, which will then offset the costs of the "must issue" provisions whereby insurers are required to offer insurance to people with pre-existing conditions.   It won't, which means that insurers will go out of business, and the government will take over.   It's inevitable economics.

Good Day for Obamacare, Bad Day for Obama?

Obamacare was upheld... but only as what will now be understood as a huge tax increase on the middle-class.

And now... so far 10 Democrats have voted to hold Obama's Attorney General in contempt of Congress in the Fast and Furious scandal.

More on the Obamacare Decision

Also, it should be remembered that Roberts' decision rejecting the Government's Commerce Clause argument is a long-term "win" for conservatism:

People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act.  That is not the country the Framers of our Constitution envisioned.

Everyone will likely participate in the markets for food, clothing, transportation, shelter, or energy; that does not authorize Congress to direct them to purchase particular products in those or other markets today. The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions. Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States.

This will be strong precedent for invalidating future "mandates."   Congress could still go ahead and mandate things via a "tax," but they'll get called on it more often, and won't be able to deny that what they're doing is raising taxes.   Because Congressmen don't like to raise taxes (or rather, people don't like Congressmen who do), this ruling will provide some restraint on future government action to compel Americans to do something.

Stock Market Doesn't Like Obamacare Decision

Pretty obviously:

Understanding the Roberts Decision

It will be known as the Roberts decision, because the Chief Justice both authored it and provided the swing vote, much to the surprise of most commentators, including me.   I think Roberts' decision can best be understood as a measure of his deep and long-term conservatism in that he views the prestige of the Court and the Constitution as a long-term bulwark against tyranny, and the Obamacare decision, while enshrining bad law in the short-term, preserves and enhances that prestige for the future.   By maintaining a clear divide between what are questions of law for  the Court and what are questions of policy for the legislature, he sets himself up to make perhaps tougher decisions down the road; he will be insulated to a degree from future criticism because, in this case, he took the unpopular position.

I also think that on some level he believes that the American people, duped in 2008 by Obama, will correct their mistake via the political process, and that a political reversal of course in 2012 and a legislative repeal of Obamacare in 2013 is the way the system is supposed to work, rather than having 9 unelected judges overturn a complex piece of legislation.  

Here are some key passages:

We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions. 

Our permissive reading of these powers is explained inpart by a general reticence to invalidate the acts of theNation’s elected leaders. "Proper respect for a co-ordinate branch of the government" requires that we strike down an Act of Congress only if "the lack of constitutional authority to pass [the] act in question is clearly demonstrated." United States v. Harris, 106 U. S. 629, 635 (1883).Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcingthose limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.

Be Careful What You Wish For

A year ago the MSM and the Obama Administration were trumpeting an "Arab Spring" in which democratic forces in Egypt had risen up in the "Facebook Revolution" to overthrow the evil Mubarek regime.   Here now is the newly elected President of Egypt, Mohamed Morsi of the Muslim Brotherhood, doing a Jesse Jackson-style call-and-response with a mob of his followers:

Morsi: The Koran was and will continue to be our constitution.  The Koran will continue to be our constitution.  The Koran is our constitution.
Crowd: The Koran is our constitution.
Morsi: The Prophet Muhammad is our leader.
Crowd: The Prophet Muhammad is our leader.
Morsi: Jihad is our path.
Crowd: Jihad is our path.
Morsi: And death for the sake of Allah is our most lofty aspiration.
Crowd: And death for the sake of Allah is our most lofty aspiration.
Morsi: Above all – Allah is our goal.

To the yuppies in the MSM who dubbed the Egyptian coup the "Facebook Revolution"... going forward, you might want to remember to be careful what you wish for.

Big Day!

In addition to the Obamacare decision, the House is planning to vote on a contempt of Congress resolution against Attorney General Eric Holder, and at least some Democrats are planning to sign on according to this report from the Daily Caller.

Rats.   Leaving.   Sinking.   Ship.

Let the preference cascade begin!

Girl of the Day - Sunshine II

It's another sunny day here in Milwaukee... a good day for some Grace!

Slow Joe

From the Corner:

Today in Iowa, Joe Biden said, “My grandpa used to say, from Scranton, he’d say, ‘Joey, when the guy in Dunmore – the next town over – when the guy in Dunmore is out of work, it’s an economic slowdown. When your brother-in-law is out of work, it’s a recession. When you’re out of work, it’s a depression. It’s a depression for millions and millions of Americans.” 

Is he trying to get replaced as the VP candidate?

Coming Soon to a Municipality Near You....

The City of Stockton, California, today sought bankruptcy protection:

Salaries for current workers and benefits for them and former employees account for about 68 percent of the city’s general fund, the city said.

The city has cut services so much the last two years that “public safety is at a crisis level,” officials said in a June 5 fiscal report. Unemployment, at 15.4 percent in April, was almost double the national average according to the U.S. Department of Labor.

Stockton ranked third in murders last year among large California cities, behind Los Angeles and Oakland, according to FBI data.

The collapse of the housing market left Stockton to contend with mounting retiree health-care costs and eroding tax dollars in the wake of the recession, amid accounting errors that overstated municipal revenues. One in every 195 homes in Stockton’s metropolitan area received a foreclosure filing in May, the fifth-highest rate in the U.S.

Reading between the lines, you have highly-compensated public employees, both current and retired, living high on the hog off the tax dollars of an increasingly poor community with high unemployment, high crime, and a deteriorating housing market.    Sound familiar, America?   How about you, Detroit?   Sound familiar?   Chicago?   Milwaukee?   Anybody?

***

Update: Stockton's median household income is $45,730, well beneath the state average.   But, according to the WSJ, the city has "$800 million unfunded liability for pensions and retiree health benefits.... which are not pre-funded [and] are expected to grow by 7.5% annually for the foreseeable future. Pension costs are about 40% of what the city pays on worker salaries and are also growing. The average firefighter costs the city about $157,000 a year in pay and benefits and can retire at age 50 with a pension equal to 90% of his highest year's salary plus nearly free lifetime health benefits."

How exactly did anyone think that was a sustainable business model? 

More to the point, how did anyone think that was moral in a town as poor as Stockton?

Obamacare-ageddon Tomorrow!

My prediction:  5-4 to overturn the individual mandate as unconstitutional, on the grounds that upholding it would mean that there is no limiting principle constraining the federal government's power under the Commerce Clause; but 6-3 upholding the rest of the abomination (Obamanation?) as constitutional, even though the whole house of cards makes no sense and is unworkable without the mandate as a funding mechanism.   The Court will say something to the effect that the economic impossibility of a piece of legislation is a question for Congress to fix, not the Court.    Roberts and Kennedy will vote with the majority on both, Roberts will write the opinion for the Court; Ginzberg will write the dissent/partial concurrence.

The most likely alternative:  a 6-3 decision upholding the whole thing as Constitutional under the Commerce Clause.   I call this one the "That Boat Sailed A Long Time Ago" doctrine, which concedes that Leviathan exists and is all-powerful.

The second most likely alternative:  a spasm of courage from Justices Kennedy and Roberts, who correctly conclude that the mandate is unconstitutional and non-severable from the statute as a whole, since it is patently the linchpin of the entire scheme.

9:00 am central tomorrow.   Check the SCOTUSblog for live-blogging of the decisions.

President Liar

Victor Davis Hanson has a piece up that includes this paragraph:

We are at a point now where no one can verify anything from the president’s past, given that his own memoir was largely mythographic — details about his family, friends, and girlfriends made up to enhance his preferred narrative of racial oppression. If a writer will fudge on the very details of his own dying mother’s seeking to obtain health care, then he will fudge on almost anything. And if the Birthers were unhinged for suggesting that Obama was born in Kenya, what are we to make of Obama himself allowing just that untruth to appear on his literary agent’s biography of him for over a decade?

Just last week, Mark Steyn had a similar piece:

Courtesy of David Maraniss’s new book, we now know that yet another key prop of Barack Obama’s identity is false: His Kenyan grandfather was not brutally tortured or even non-brutally detained by his British colonial masters. The composite gram’pa joins an ever-swelling cast of characters from Barack’s “memoir” who, to put it discreetly, differ somewhat in reality from their bit parts in the grand Obama narrative. The best friend at school portrayed in Obama’s autobiography as “a symbol of young blackness” was, in fact, half Japanese, and not a close friend. The white girlfriend he took to an off-Broadway play that prompted an angry post-show exchange about race never saw the play, dated Obama in an entirely different time zone, and had no such world-historically significant conversation with him. His Indonesian step-grandfather supposedly killed by Dutch soldiers during his people’s valiant struggle against colonialism met his actual demise when he “fell off a chair at his home while trying to hang drapes.”

This has been a fairly big story in the blogosphere, but doesn't seem to have made much of a dent in the broader culture.   Shouldn't it be the biggest story in the world, bigger even than Fast and Furious (which isn't big enough) or Solyndra (ditto), that the President of the United States is a demonstrated liar?   Instead of being big news, we're reduced to what amount in the grand historical scheme to right-wing cranks (sorry, Victor and Mark, but that's how the MSM views you) making fun of the President's prevarications.

Miming VDH's formula (if Obama will lie about his mother, what won't he lie about), let me put it this way:   if the President is a liar, why should we trust anything in our government?   Why isn't that moving the polls more?

Is there really 40% of America out there who will vote for a Democrat over any Republican -- even a fairly moderate man of lifelong, demonstrated probity like Mitt Romney -- even if the Democrat is a proven liar?

I guess so.

This is Pretty Much the 2012 Election in a Nutshell

Hat tip: Ace of Spades.

Prometheus

Meh.   We saw it last night.   I was expecting a lot more from Ridley Scott.   But, mostly, I keep expecting some movie maker to acknowledge some basics of physics, biology, and even pyschology.   Are we really supposed to believe that, after a trillion dollar investment in their spacecraft (this is what the screenplay says) and a multi-year voyage, the space explorers will just blithely enter the atmosphere of the alien planet looking for a suitable landing place -- with no reconnaissance!?  Are they nuts?   And then, are we really to believe that they will simply enter the alien structure and start down the dark hallways without anyone arguing that maybe we ought to send unmanned drones into the facility first?   Haven't they ever seen horror movies?   And that, determining that the atmosphere is OK, that they will just all take their helmets off (without ever thinking that there might be airborne micro-organisms)?   And then, are we really to believe that, having discovered some strange alien being's corpse, that they would just bring it back to the ship and start doing experiments on it?   And that, with two crew members lost in the alien structure during a vicious storm and with "life forms" identified by remote sensors that appear to be stalking them, that the Captains of the main spacecraft would choose that moment to start flirting and decide that now would be a good time to have sex?  

A lot of plot holes with a lot of semi-wasted beautiful CGI, IMHO.  

I do like Noomi Rapace, though.

Girl of the Day - Sunshine Version

It's almost ridiculously perfect weather-wise here in Milwaukee... high 70s and not a cloud in the sky, no humidity, a little bit of a breeze off the lake.   How could life be any better?

Oh, right.

***

Note: still making an effort to limit the lasciviousness of the Girl of the Day photos.   :)

The Obama Strategy

Charlie Cook nails Obama's twofold strategy to win an election that his record demonstrates he has no business winning:  (1) scare independents about a Romney Presidency; and (2) motivate specific constituencies along racial lines:

We are past the point where Obama can win a referendum election, regardless of whether it is on him or the economy. The success of his campaign is contingent upon two things. First, when focusing on the narrow sliver of undecided voters, between 6 and 8 percent of the electorate, the Obama team must make its candidate the lesser of two evils. It has to make the prospect of a Mitt Romney presidency so unpalatable that about half of those undecided voters will begrudgingly vote for reelection. Polling focusing on the undecided voters reveals they are a deeply pessimistic and angry segment of the electorate and don’t particularly like either candidate (fitting, because they don’t tend to like politicians). But they show signs of being more conservative than not. One unpublished analysis gives Republicans a 10-point advantage on the generic congressional ballot test among those undecided about the presidential race. Close analysis of the numbers shows that Obama might have an edge with between a third and a quarter of the currently undecided bloc. That’s cutting things awfully close.

The second key is turnout. African-Americans look solid for Obama and very likely to vote in high numbers, but young and Latino voters’ turnout appears problematic. Obama’s recent announcement of a newly articulated Dream Act-light policy could help, but it is too soon to see any data showing measurable change. It is what many Latino voters wanted to see, though Obama did it less than five months before the election when it could have been done three years ago. After deportations had reached levels higher than those under George W. Bush, it could take a lot to drive up Latino turnout.

I would note that the two strategies overlap.   Obama's coalition is made up of youth, women, blacks, Latinos, gays, unions and old people.   All of his moves are about scaring these groups about Republicans as a way of motivating them to turnout.   He scares young people about student loans, women about contraception and abortion, blacks about supposedly "racist" Republicans, Latinos about deportation, unions about an end to the gravy train, and old people about cuts to Medicare.   Many of his tactics are straw men -- Republicans aren't that likely to oppress blacks or gays or Latinos or women in any meaningful way, but that doesn't keep Obama from raising the GOP up as boogeymen.  

I would also note that there is third strategy at play... kick scandals like Fast and Furious past election day.   Whether he'll be able to get away with it is another story.

Issa Hammers Obama

Look, I'm a lawyer.   I know how to do legal research.   It took me probably about 15 minutes to find the controlling legal precedent defining the scope of executive privilege.   The case is Espy, from the D.C. Circuit.   I noted here that it was astonishing that Attorney General Holder's letter to President Obama failed to cite this case law; not doing so is highly misleading on the central legal point, and any judge would view it as such.

Now Congressman Darrell Issa has cut directly to the point in his letter to Obama released this morning:

Absent from the Attorney General’s eight-page letter were the controlling authorities from the U.S. Court of Appeals for the District of Columbia. As the court held in the seminal case of In re Sealed Case (Espy)... The Committee must assume that the White House Counsel’s Office is fully aware of the prevailing authorities of Espy...

Just so.   The White House Counsel's Office must be aware of Espy as the controlling authority, but they've chosen to ignore it.   Obama's invocation of executive privilege is plainly lawless.

The Great VDH

Victor Davis Hanson has what amounts to a summary of the debacle that is the Obama Administration.   Read the whole thing, here is a key passage on the economy:

As we see in New Jersey, Ohio, Texas, and Wisconsin, the cure for the present economic malaise is not rocket science — a curbing of the size of government, a revision of the tax code, a modest roll back in regulation, reform of public employment, and holding the line on new taxes. Do that and public confidence returns, businesses start hiring, and finances settle down. Do the opposite as we see in Mediterranean Europe, California, or Illinois over the last decade and chaos ensues.

Obama took a budding recovery in June 2009 and through massive borrowing, the federal takeover of health care, new expansions of food stamps and unemployment insurance, the curtailing of oil and gas leasing on public lands, new regulations, and non-stop demagoguery of the private sector slowed the economy to a crawl. His goal seems not to restore economic growth per se, but to seek an equality of result even if that means higher unemployment, and less net wealth for the poor and middle classes. Obama hinted at that in 2008 when he said he would raise capital gains taxes even if it meant less revenue, given the need for ‘fairness.’ Indeed, equality is best achieved by bringing the top down rather than the bottom up. Nowhere is the Obama model of massive borrowing, vast increases in the size of the state, more regulations, and class warfare successful — not in California or Illinois, not in Greece, Spain, or Italy, not anywhere.

Lolo!

Lolo Jones managed to eke onto the Olympics team, finishing third in the U.S. Olympic trials 110 meter hurdles competition.   An amazing race -- Jones ran 12.86, but the eighth place woman ran 13.02.   At that speed (roughly 10 meters a second when they are fully accelerated), that means that five different women lost out on their Olympic dreams by less than 1.5 meters, or about 5 feet.   To work that hard and lose out on a dream (or succeed) by a whisker... that's what makes sports so compelling!

Here's the race:

No Obamacare Ruling Today!

The Supreme Court kicked the Obamacare decision further down the road (until Thursday at the latest).  

The Court upheld the Ninth Circuit's ruling invalidating most of Arizona's immigration enforcement law, permitting only Arizona police officers from checking the immigration status of individuals they've stopped. All the rest was pre-empted by federal immigration law, including state laws criminalizing being an illegal.  Probably the right decision, although states on the border witih Mexico have a right to be frustrated by the federal government's poor efforts at immigration enforcement.

The decision in Arizona included Kennedy and Roberts in the majority, with Sotomayor, Breyer and Ginzberg.   Scalia, Thomas and Alito dissented.   Tea leaves suggest a muddled decision on Obamacare at best, if not out-and-out affirming, with Kennedy providing the fifth vote, and Roberts possibly joining in part.   We'll see.

Girl of the Day - Anticipation (Carly Simon)

While waiting for the Obamacare decision (if it comes today), it seemed fitting to throw in a Girl of the Day from the fading heyday of liberalism.   Ladies and Gentlemen, Carly Simon!

Mandate-ageddon!

The Supreme Court may announce its ruling on Obamacare today.   Opinions get announced at 9:00 am.

My bet:  the Court splits the baby, holds the individual mandate unconstitutional, upholds the rest.   Then, chaos ensues, since the scheme only works if the mandate compels healthy people to pay for insurance while simultaneously compelling insurers to accept people with pre-existing conditions.   If you do the latter without the former, insurance companies go out of business, because every rational economic actor will opt to be a "free rider" without insurance (until they need it).

Analogies and Double Standards

A few days ago I noted a good analogy about Obama's immigration decision, noting that if a Republican President had failed to get a capital gains tax elimination bill through Congress and then had simply, via executive order, compelled the IRS to stop collecting capital gains tax, the impeachment talk would have begun immediately.   Here's another good analogy, this time with regard to Fast and Furious:

What if Walmart, the “largest seller of firearms and ammunition in America,” had knowingly sold 2,500 firearms to straw purchasers with the intent of having those purchasers carry those guns across an international border and sell them to drug cartel members in Mexico?

And,what if at least two (but possibly three or more) of the guns were used in the murder of a U.S. Border Patrol agent while an untold number of the weapons were used to kill hundreds—literally hundreds—of Mexican citizens?

Moreover, what if one of the straw purchasers, who bought over 700 guns, was on food stamps and Walmart knew it, yet they sold him guns in exchange for bags of cash anyway?

What if some of the 2,500 hundred guns were recovered, but more than 1,000 were not, and what if an untold number of those unrecovered guns were believed to be in the hands of criminals in American cities on our Southwest border?

And lastly, what if explanations given by Walmart board members regarding the authorization of this straw-purchasing, gun-walking program were in conflict with the testimony given by their executive? And what if both they and their executive snubbed their noses at Congressional requests for documentation that would explain who knew what and when?

What would happen to Walmart if that company did these things?

Ace's Key Insight

Ace makes a key point about how so-called "independents" (read: low information voters) will think about Fast and Furious:

I don't think the swing bloc which will decide the election knows much about Fast & Furious, or would even care much if they bothered to inform themselves.

As I've said, I don't think they do their homework.

But this is a dangerous thing for Obama, even among people who don't do their homework. At some point they take a look at all the questions they would have to resolve in Obama's favor in order to vote for him, and decide: The hell with that. That's too much work. I'd have to do an awful lot of homework just to feel comfortable clearing Obama of all this accumulate crap. It's just easier to assume he's halfway guilty on all of it.

And that's how I think people who don't do their homework tend to think.

The casual observer is just beginning to hear about Obama and "withholding documents" and "executive privilege" and contempt of Congress and gun-running and Mexican drug cartels and a dead border patrol agent.   They don't have to connect all of the dots to think that something in there must stink to high heaven. 

File This Under "If You've Lost Jon Stewart..."

Jon Stewart does a better job laying out the facts behind Fast and Furious and criticizing the Obama Administration's conduct, including Obama's assertion of executive privilege, than anyone else in the MSM by far:

The Daily Show
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Olympics Preview - More Lolo Jones

As you can tell, I'm a big fan of hurdler Lolo Jones, and Olympic track generally:

Also watching: Allyson Felix, who is trying to double in the 100 and 200; and Jenny Simpson, the reigning world champion at 1500 meters.

Girl of the Day - Meryl Streep

She's 62 today, and still lovely, but people forget how beautiful she was when she was first coming on the scene in the 1970s.

Uh-Oh, Preference Cascade Update

Rasmussen's tracking poll is now showing Romney up by 5 points, 48-43.

Get ready.

Krauthammer!

Charles Krauthammer, in an important article, offers this terrific analogy regarding the "naked lawlessness" of Obama's executive order on illegal immigration:

Imagine: A Republican president submits to Congress a bill abolishing the capital-gains tax. Congress rejects it. The president then orders the IRS to stop collecting capital-gains taxes, and declares that anyone refusing to pay them will suffer no fine, no penalty, no sanction whatsoever. (Analogy first suggested by law professor John Yoo.)

It would be a scandal, a constitutional crisis, a cause for impeachment. Why? Because unlike, for example, war powers, this is not an area of perpetual executive-legislative territorial contention. Nor is cap-gains, like the judicial status of unlawful enemy combatants, an area where the law is silent or ambiguous. Capital gains is straightforward tax law. Just as Obama’s bombshell amnesty-by-fiat is a subversion of straightforward immigration law.

Job Creation?

I don't know, but this seems a little bit, well... stupid:

The Obama administration spent $10 billion to create 355 renewable energy jobs per year, according to testimony offered Tuesday before Congress by a Congressional Research Services expert.
Asked by Rep. Cory Gardner (R., Colo.) “how many jobs were created” in 2009 and 2010 under the 1603 renewable energy grant program authorized by the Obama administration, a CRS specialist in public finance admitted that $10 billion was spent to create 3,666 construction jobs over a two-year period–and only 355 jobs per year going forward.
Dr. Molly Sherlock, the CRS specialist, first said the jobs total would depend on the type of job–and differentiated between “induced,” “direct,” and  ”indirect” jobs–before Gardner asked for a straight number.
“I just want to know how many jobs were created,” Gardner said during the hearing.
“If you’re looking at the direct jobs, this one estimate has direct jobs created at 3,666 in the construction phase, and direct jobs created at 355,” Sherlock said. “Direct jobs would just be the construction jobs and the ongoing operations and maintenance jobs. But if you wanted to look at the supporting jobs in other industries then you’d want to look at the other figures.”
“So for direct jobs—just if we look at the first year, this is average jobs per year, it’s 355 jobs per year—in two years, 355 jobs created a year, $10 billion?” Gardner asked.
“That would be jobs per year going forward,” Sherlock responded, “so these would be jobs that would be retained, average jobs per year going forward, yes.”
“For $10 billion?” Gardner clarified.
“Yes,” Sherlock said.

OK, now I realize that this may take some arithmetic, which is hard for government workers.   But 355 jobs for $10 billion works out to about a little under $30 million per job!   Even if the 3666 temporary construction jobs were "created" and permanent, you'd still be looking at something just under $3 million per job.

Let's put that in perspective.   A decent middle-class job, nothing fancy, but well-paying for people who would otherwise be out of work, might be something like $40,000 a year.   Add in a decent benefit package and let's put the total cost of labor at $60,000 per year.   Let's call these decent middle-class jobs "new teachers" or "new police officers" or "new firemen," since the Democrats only seem to care about those type of public service jobs.   But so be it.   I could hire 1,000 new teachers, policemen or firemen at that rate for $60 million a year.   I could hire 10,000 for $600 million.   I could hire 100,000 for $6 billion.   So I could hire roughly 166,000 for $10 billion.  

Why aren't the public employee unions and teachers' unions screaming about how Obama's efforts to line the pockets of his wealthy cronies in "green energy" are robbing "the children" and endangering our neighborhoods?

Obama '12 - What's Good for My Donors Is Good For America!

Is Holder's Assertion of Executive Privilege Sanctionable?

When a lawyer does something unethical, we lawyers say that the conduct is "sanctionable," meaning that it warrants discipline by the bars to which the lawyer belongs.   So the question arises, is Eric Holder's assertion of the "deliberative process" version of executive privilege sanctionable, when it utterly fails to acknowledge the relevant precedent, the Espy case, which holds that the privilege "disappears" in cases where Congress is investigating government misconduct?

I think it is.   Holder is a member of the District of Columbia Bar.   Under Rule 3.3(a)(3) of the Rules of Professional Conduct for D.C., entitled "Candor to the Tribunal,"

 A lawyer shall not knowingly:... Fail to disclose to the tribunal legal authority in the controlling jurisdiction not disclosed by opposing counsel and known to the lawyer to be dispositive of a question at issue and directly adverse to the position of the client.  

In my opinion, failing to disclose the importance of the Espy decision to the analysis of executive privilege in this case does, in fact, violate this rule of ethics.   Holder would thus be theoretically sanctionable.

No News on Obamacare Supreme Court Ruling

The Supreme Court did not issue a ruling today on the Obamacare case, so we'll have to wait until next week.   Oddly, this is probably bad for the President... don't you think he would have loved to have a ruling today that would push Fast and Furious off the front pages and out of the Sunday news shows?   Now it will be wall-to-wall executive privilege analysis for the next few days.

Girl of the Day - Jane Russell

It's Jane Russell's birthday.   'Nuff said.

Hinderaker on Executive Privilege

John Hinderaker, an attorney who writes at the Powerline blog, has this trenchant observation about Eric Holder's argument for executive privilege in the Fast and Furious investigation:

Also, it's gratifying to see that Hinderaker, like me a commercial litigation attorney, reaches the same conclusion regarding the claim of "deliberative process" privilege by the administration -- under the relevant precedent, the Espy case from the D.C. Circuit, it's frivolous.

Holder’s letter is a remarkable document. Viewed from a strictly technical standpoint, it is a terrible piece of legal work. Its arguments are weak at best; in some cases, they are so frivolous as to invite the imposition of sanctions if they were asserted in court. I will explain why momentarily, but first this observation: if an opposing party requests documents that plainly are protected by a privilege, a lawyer will routinely assert the privilege, on principle, even though there is nothing hurtful to his case in those documents. On the other hand, a lawyer will not assert a lousy claim of privilege unless he badly wants to keep the documents in question out of the opponent’s hands because of their damaging nature. If I am correct that the administration’s assertion of executive privilege is baseless, it is reasonable to infer that the documents, if made public, would be highly damaging to President Obama, Attorney General Holder, or other senior administration officials.

Drip, Drip, Drip.... Gush!

Unemployment numbers for May.   Gay marriage.   The Wisconsin election.    National security leaks.   Fast and Furious.   Executive privilege.   And tomorrow, maybe, the Obamacare ruling.

Hear that dripping sound?   That's the sound of a preference cascade about to happen.

More on Fast and Furious

Earlier today I noted that the "deliberative process" privilege asserted by Obama/Holder does not apply in cases of governmental misconduct.  Obviously Fast and Furious is such a case, but I had forgotten this nugget, which makes the point even more obvious:

The chief of the Criminal Division of the U.S. Attorney’s Office in Arizona is refusing to testify before Congress regarding Operation Fast and Furious, the federal gun-running scandal that sent U.S. weapons to Mexico.

Patrick J. Cunningham informed the House Oversight Committee late Thursday through his attorney that he will use the Fifth Amendment protection.

That was several months ago.  Interesting how the story seemed to disappear from view until now in the MSM, isn't it?

Brian Terry Family's Statement

Ouch:

The family of slain U.S. Border Patrol agent Brian Terry, who was killed with guns tied to the Fast and Furious program, issued a statement Wednesday afternoon accusing President Obama of compounding their family tragedy by invoking executive privilege....

Terry family attorney Pat McGroder on Wednesday released the following statement from Terry’s parents Josephine Terry and Kent Terry Sr.: “Attorney General Eric Holder’s refusal to fully disclose the documents associated with Operation Fast and Furious and President Obama’s assertion of executive privilege serves to compound this tragedy. It denies the Terry family and the American people the truth.”

The Terrys said that their son “was killed by members of a Mexican drug cartel armed with weapons from this failed Justice Department gun trafficking investigation. For more than 18 months we have been asking our federal government for justice and accountability. The documents sought by the House Oversight Committee and associated with Operation Fast and Furious should be produced and turned over to the committee. Our son lost his life protecting this nation, and it is very disappointing that we are now faced with an administration that seems more concerned with protecting themselves rather than revealing the truth behind Operation Fast and Furious.”

Hard for the MSM to ignore the story now, huh?

This Meme May Have Legs

From Drudge:

Andrew McCarthy on Fast and Furious

Andrew McCarthy hits it on the head here:

The issue in F&F is not the withholding of DOJ documents. The issue is the reckless provision of an arsenal fit for an army to violent cartels, quite predictably resulting in the murders of possibly hundreds of people including at least one United States law enforcement officer. That is the reason Congress did not go away, as it usually does, when the Justice Department ignores or slow-walks demands for information. What happened here is too grave to take “no” for an answer....

Because Issa has been dogged, we have now gotten down to brass tacks. The prospect of the attorney general’s being held in contempt finally prompted the president — the only official in the government empowered to assert executive privilege — to claim that the documents sought are being withheld at his (Obama’s) direction, based on his constitutional authority.

Executive privilege is a vestige of Richard Nixon’s desperate effort to conceal criminality in the Watergate scandal. The last thing Obama wanted to do, with the November election looming, was resort to the Nixon strategy (which, we should recall, failed in the end)....

They really don’t want you to see what is in those documents.

I Agree With Obama on Executive Privilege!

Here is what he said in 2007 regarding the question when it involved an investigation into why President Bush fired nine U.S. attorneys:

Fast and Furious and Executive Privilege Primer - Update

Here is Eric Holder's letter to the President.   Apparently he is claiming the "deliberative process" privilege:

I am very concerned that the compelled production to Congress of internal Executive Branch materials generated in the course of the deliberative process concering its response to congressional oversight and related media inquiries would have significant, damaging consequences.

Astonishingly, however, it nowhere cites or attempts to distinguish the Espy or Judicial Watch cases, the most recent precedents, nor does it note the "governmental misconduct" exception to the privilege that Espy stands for.  

This is pure PR... make the contempt citation Congress is probably issuing as we speak something they can downplay as politics; and otherwise kick the can down the road past the election, because no court could possibly rule on this before then.   They know they don't have a leg to stand on legally.   Shameful.

Fast and Furious and Executive Privilege Primer

The President has invoked executive privilege at the 11th hour to justify withholding reams of documents about the Fast and Furious gunrunning fiasco.   Much will be said about this in the coming days, so here's a primer:

1. The most salient and recent precedents on executive privilege are the D.C. Circuit's rulings in the 1997 Espy case (involving Clinton's Agriculture Secretary) and the 2004 Judicial Watch case (involving Clinton's 2000 pardons).    These decisions are from a Court of Appeals just below the Supreme Court.

2. Under these precedents, there are two possible ways a President can assert executive privilege, either (a) the "deliberative process" privilege; or (b) the "presidential communications" privilege.  

3. The deliberative process privilege applies to executive branch officials generally involved with presidential decisionmaking.    Importantly, however, under Espy, "where there is reason to believe the documents sought may shed light on government misconduct, the deliberative process privilege is routinely denied on the grounds that shielding internal governmental deliberations in this context does not serve the public interest in honest, effective government."   Put differently, again by Espy, the privilege "disappears altogether when there is any reason to believe government misconduct has occurred."   That threshold has clearly been met in Fast and Furious.  

4.  So the only privilege they appear to be able to assert would be the "presidential communications" privilege.   But there's the rub, as they say.

5.  The presidential communications privilege only covers communications made or received by presidential advisers in the course of preparing advice for the President, and is explicitly confined to White House staff and not staff in the agencies.   In other words, it requires "operational proximity" to direct presidential decisionmaking.      As Espy holds, "In particular, the privilege should not extend to staff outside the White House in executive branch agencies." 

Given these precedents, I don't see how the President has non-frivolously invoked the privilege, unless he is admitting that the communications withheld are with close Presidential advisers about advice to be given to him.   But... really?   Is he really admitting that he was that involved in Fast and Furious and its coverup?

A good discussion of the privilege can be found here, in a 2008 publication by the Congressional Research Service, which would appear to be authoritative, at least until the Supreme Court rules otherwise.

LeBron James

The Miami Heat went up 3-1 yesterday in the NBA finals against the Oklahoma Thunder.   Thus, LeBron James is on the brink of winning his first NBA championship.   This is his third finals in his career -- remember, he took a truly bad Cleveland Cavaliers team all the way to the finals a few years ago, before taking the Heat there last year.    Lest you think that he's been a failure in the "clutch" in his career to date, it may interest you to know that, if James wins the title this year, he will have won his first title at a younger age than Michael Jordan won his first of six.   We think Jordan got there quicker only because Jordan played three years of college before coming to the NBA, and thus was only in his seventh year in the league.   James is younger, but already is in his ninth year.

Oh, and the iconic moment of James coming back in with cramps at the end of the game to shoot a clutch three-pointer cements his new reputation as a winner.   He always was one, but now everyone knows.  

Funny how that works.

Girl of the Day - Candy Clark

Candy Clark played Debbie Dunham in the 1973 movie American Graffiti.   In retrospect, the movie captures something essential about the 1960s in the character of "Curt" played by Richard Dreyfuss, the unearned, condescending moral superiority of what would become the liberal-radical anti-war left (recalling that Dreyfuss' character ends up being a "writer living in Canada").  

Anyway, Clark played the blonde who befriends the nerdy secondary character played by Charles Martin Smith (who is great in everything he does).    She also has one of the great voices ever:






Clark turns 65 today. Tempus fugit.

Promises, Promises - Obama's Saturday Morning Talks

Oh, promises, promises
This is where those promises, promises end
I don't pretend that what was wrong can be right...
--Dionne Warwick


It goes without saying that President Obama is a man for whom rhetoric is paramount.   Where would he be without his ability to deliver a speech?   In 2008 his oratory was elevated to almost legendary stature, to the point where it was inevitable that he would deliver a speech standing before Greek columns, as if a latter-day Demosthenes had come back to life.   At the time, many of us called it for what it was... fake romantic liberal B.S.    But many more bought into the mythmaking of Obama as a great speaker (notably without ever analyzing the degree to which lauding Obama's ability to speak was similar to how sportscasters used to describe black athletes as "articulate" when they never described white athletes who spoke with similar fluency in similar terms).  

The problem with relying on speaking in the Internet age is that your speeches tend to live on for eternity and can be exhumed by anyone with a laptop and thrown back in your face.   There is so much Obama out there now, too much, that it is easy for the Romney campaign to just quote Obama making statements that, in the fullness of time, seem ridiculous.  

Toward that end, consider this:  every Saturday morning since his inauguration, the President has given a short "fireside chat"-type talk on video.   All of them are available on the White House's website.  

Here is what he had to say three years ago this week:

As we continue to recover from an historic economic crisis, it is clear to everyone that one of its major causes was a breakdown in oversight that led to widespread abuses in the financial system. An epidemic of irresponsibility took hold from Wall Street to Washington to Main Street.  And the consequences have been disastrous. Millions of Americans have seen their life savings erode; families have been devastated by job losses; businesses large and small have closed their doors. 

In response, this week, my administration proposed a set of major reforms to the rules that govern our financial system; to attack the causes of this crisis and to prevent future crises from taking place; to ensure that our markets can work fairly and freely for businesses and consumers alike. 

So, as of three years ago, in his June 19, 2009 radio address, Obama was already saying that we were "recovering" from the economic crisis, and that his policies would "prevent future crises."  

There is more, much more in these radio addresses -- paeans to clean energy (Solyndra?  hello?), for instance.    Expect the Romney campaign to be mining these past statements by Obama to great effect in commercials, whether on television or simply "broadcast" via new media (Youtube, networks of bloggers, etc.).  

Look, this might be unfair.   No one wants their words quoted back to them.   I would imagine that if you looked at the Regular Guy Believes from two years ago, much of what I've said would look foolish too.   But the difference is this... policy is always a prediction.   If I support a policy to create jobs, I am predicting (read: promising) that the policy will, in fact, create jobs.   If it doesn't, that means that my policy was wrong, just as if an experiment fails in science, it means that the hypothesis was wrong.

Obama was full of predictions and promises in 2009.   Very few of them have been proved in the crucible of experience. 

Obama's Self-Invention, or as We Like to Call it Here in Wisconsin... Lying

Generally, I'm willing to cut Obama (and Clinton before him) some slack on their propensities to reinvent their personal histories to fit a politically-attractive narrative.   But this sort of thing is ridiculous:

1. Hussein Onyango, Barack's grandfather, wasn't really imprisoned and tortured by the British.

2. The father of his Indonesian stepfather, Soewarno Martodihardjo, wasn't killed by Dutch soldiers in the fight for independence.

 

3. Regina, a friend at Occidental who Obama writes about as a symbol of the authentic African-American experience turns out to be based on Carolina Boss, who is white. Regina was the name of her Swiss grandmother.

 

4. Obama projected a racial incident onto his New York girlfriend that he later told Maraniss had happened in Chicago.

 

5. Obama wrote that he broke up with his New York girlfriend in part because she was white. But his next girlfriend, an anthropologist in Chicago, was also white.

 

6. Obama cuts out two white college roommates entirely.

 

7. Obama wrote about his high school friends as an alienated, ne'er-do-well "club of disaffection." In fact, most members of the "Choom Gang" were "decent students and athletes" who went on to successful careers.

 

8. Obama's mother left his father, not the other way around.

 

9. In his memoir, Obama mentions he missed out on playing time in high school basketball because he coach preferred players who "play like white boys do." In fact, Obama had to work hard just to make the team, and race had nothing to do with it.

These are myths exposed as lies in David Maraniss' new biography of Obama, which is detonating shortly.