American Elephants


ObamaCare Is in Danger: Liberals Are Incredulous! Impossible! by The Elephant's Child

Perhaps you remember back when the Democrat Congress and Speaker Nancy Pelosi passed ObamaCare, and she was asked where in the Constitution Congress found the power to enact a “individual mandate” to buy insurance. The then Speaker responded with an incredulous “Are you serious? Are  you serious?”

The Volokh Conspiracy listed today  some of the Pearls of constitutional wisdom from our elected representatives:

Here are a few more pearls of constitutional wisdom from our elected representatives.
Rep. Conyers cited the “Good and Welfare Clause” as the source of Congress’s authority [there is no such clause].
Rep. Stark responded, “the federal government can do most anything in this country.”
Rep. Clyburn  replied, “There’s nothing in the Constitution that says the federal government has anything to do with most of the stuff we do. How about [you] show me where in the Constitution it prohibits the federal government from doing this?”
Rep. Hare said “I don’t worry about the Constitution on this, to be honest [...] It doesn’t matter to me.” When asked, “Where in the Constitution does it give you the authority …?” He replied, “I don’t know.”
Sen. Akaka said he “not aware” of which Constitutional provision authorizes the healthcare bill.
Sen. Leahy added, “We have plenty of authority. Are you saying there’s no authority?”
Sen. Landrieu told a questioner, “I’ll leave that up to the constitutional lawyers on our staff.”

Well, it hasn’t been overturned yet, and may not be, but the possibility hadn’t even occurred to Democrats.

Chris Matthews was incredulous. “No one I know ever said ObamaCare could be overturned” “I never heard it discussed politically— that they could overturn his major achievement.”

For most of the last century, Liberals have preached that the Constitution is a living document that needs to be interpreted and re-interpreted to fit the needs of the times.  That interpretation leads them to a vast expansion of government and a large number of new rights that suit the needs of whatever election is current. Activist liberal judges have consistently ignored the constitution and imposed their own ideas, and changed the way we think about government.  The very idea that a conservative majority might rule ObamaCare unconstitutional has the editorial writers at the New York Times up in arms: “The Supreme Court faces a central test: whether it will recognize limits on its own authority to overturn well-founded acts of Congress.” They are shocked! Shocked!

The Times— completely missing the irony — believes that if the court overturns ObamaCare, it will be a “willful rejection” of “established constitutional principles that have been upheld for generations.” We can hope.



President Obama Nominates Elena Kagan to the Supreme Court. by The Elephant's Child

President Barack Obama nominated Solicitor General Elena Kagan to the Supreme Court today.  The nomination is the major news on the internet today. There is much to be troubled by, but it will take time for exploration of  her background and qualifications to take place.

Attorney Paul Mirengoff of Power Line wasted no words:

She has no judging experience.

She has little experience as a practicing lawyer.

She has approximately one year of experience as Solicitor General of the United States.

She has lots of experience in academia, but has published only a small amount of scholarly work, none of which seems particularly noteworthy.

As the dean of Harvard Law School, she was tolerant of conservative law professors, but not of the United States military.

This briefly sums up what everyone else has said in a brief space.  We will have ample time to fill in the blanks.

A Supreme Court nomination is a very big deal.  It is a lifetime appointment, and decisions will influence the country for generations.  At present there is a great divide between those who revere the Constitution that has served us so well for 223 years, and those who feel that the Constitution must change and develop in concert with the ideas of the political party in power.



Why Do The Democrats Hate Free Speech? by The Elephant's Child

The Supreme Court handed down a major decision in Citizens United v. FEC, the “Hillary: The Movie” case that was first argued last March, reargued in September, and finally decided last Thursday, January 21, 2010.

Background: During the 2008 election campaign, the nonprofit group Citizens United wanted to make a film available on cable-on-demand that was critical of then-candidate Hillary Clinton.  Because Citizens United is organized as a corporation, under the McCain-Feingold campaign-finance law, its speech was banned.  The movie was not allowed to be shown, and the law was backed by criminal sanctions.  Section 441b makes it a felony for all corporations — including nonprofit advocacy corporations — either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary and 60 days of a general election.

Citizens United challenged this ban, and the Supreme Court struck down this provision of McCain-Feingold , reversing a previous ruling — Austin v. Michigan Chamber of Commerce —that permitted the government to ban corporations and labor unions from promoting or opposing political candidates.

Paul Sherman, an attorney with the Institute for Justice, which litigates free-speech cases nationwide points out:

The ruling in Citizens United is a straightforward application of basic First Amendment principles:  “When Government seeks to use its full power…to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought.  This is unlawful.  The First Amendment confirms the freedom to think for ourselves.”

The Democrats are OUTRAGED:  Corporations are not entitled to free speech, political expenditures are not “speech”, protections of the Free Speech Clause properly apply to individuals not corporations, this will corrupt the democratic process,  will radically increase powerful corporate influence in politics, blah, blah, blah. Democrats are afraid that corporations benefit Republicans, and free speech should not apply to anyone who might be critical of Democrats.

The First Amendment is about political speech, and if free speech only applies to speech that is pleasing to you, then it isn’t free, and it isn’t freedom — but tyranny.  You might find it interesting to keep track of the numerous and constant efforts of the Democrats to stifle speech that they don’t like.  For example, President Obama’s ban on Fox News continues.

Just watch.  There will be a concerted effort on the part of the Democrats to overturn or overrule this decision.  The “Democrats” aren’t much on Democracy, the Constitution (needs updating for modern times), especially the First Amendment — although that religion part is useful for getting rid of religious influences.  They’re fairly fond of the “establishment” bit but always, always, ignore the — making no law that might “prohibit the free exercise thereof” part.

Progressives are passionately fond of larger government, the growth of government, and the exercise of lots of government power.  The Constitution puts some firm limits on what government can and cannot do.  They don’t like that.



The Passing of the Spatula by American Elephant

Welcome Michelle Malkin and Ed Driscoll Readers!!

Mr. Good Judgment himself, the man in the bunny suit, also known as Senator John “I voted for the war before I voted against it” Kerry, yesterday reassured concerned Americans that he is still a world-class flip-flopper by declaring that the man he repeatedly begged to be his running mate lacks the judgment to be president.

Remember, this is the man whose service John McCain defended in the 2004 campaign.

Nonetheless, shilling for Barack Obama, the former Democrat presidential candidate, and eternal loser (who by the way served in Vietnam and has yet to release his full military records), said that John McCain, “has proven that he has been wrong about every judgment he’s made about the war.”

Oh really?

Back in the 2006 election cycle, when John Kerry, Barack Obama and the Democrat party were calling for an, up to then, undefined “change” in Iraq policy — which later turned out to mean unconditional surrender of Iraq to insurgents, terrorists and Iran — John McCain had long been supporting troop increases. A policy that Obama not only opposed, but insisted would never work. A policy that even the liberal press is being forced to admit, has been tremendously successful, and has turned out to be exactly the right strategic decision.

John McCain had exactly the right judgment. If we had followed Barack Obama’s “judgment,” the United States military would have cut and run, and Iraq today would be aflame with genocide and civil/regional war between insurgents, al Qaeda, former Ba’athists and Iran all vying for control of the world’s second largest oil supply.

It’s no wonder Obama has announced that he is “refining” his position. If he’s smart, he’ll go back to his 2004 position when he said he wouldn’t do anything differently than President Bush is doing — because President Bush, like John McCain, is right.

So, it is fitting that Mr. Kerry should be one of Obama’s biggest campaigners. The spatula has passed from one world-class flip-flopper to another. Indeed, not only does Obama seem absolutely determined to out-flop his political predecessor, but even before he has officially clinched the nomination it appears he has already done so.

It’s not just Iraq, although it is major, since the centerpiece of his campaign has been his supposed judgement on Iraq, opposition to the surge, and promises to immediately withdraw — it’s hard to find find an issue on which Obama hasn’t drastically contradicted himself. Some examples:

  1. Campaign Finance: Obama pledged, verbally and in writing, to take part in the federal campaign financing, that is until it became clear he was rolling in money. Then he claimed that the system, which has not changed since he made the pledge, was broken, and that he was going back on his promise because of as yet non-existent Republican 527 attack ads. In reality, the only attack ads thus far have been waged against McCain by the Democrat 527, MoveOn.org.
  2. NAFTA: During the primary, Obama appealed to his isolationist base by decrying NAFTA and promising, if necessary, unilateral renegotiation. It has since come out that his staff were simultaneously telling Canadian officials not to worry, that Obama was just playing politics and had no intention of following through. Indeed, he admitted as much in an interview, explaining that, “sometimes during campaigns rhetoric gets overheated and amplified.”
  3. Gay Marriage: Obama has claimed that he opposes gay marriage while his wife was simultaneously reassuring gay groups that her husband would repeal DOMA and opposed any federal measures to “discriminate” against gay relationships. Barack has since made clear that he supports the California Supreme Court’s decision, opposes citizen efforts to overturn it, and has come out in favor of full federal recognition of all legally recognized relationships.
  4. Second Amendment: This year Obama praises the Supreme Court’s decision declaring the Washington DC gun ban unconstitutional: last year his campaign assured Democrat voters the Senator believed the ban was entirely constitutional. Just a few months ago he disparaged voters who “cling” to their guns.
  5. Wiretaps: Obama previously assured his deranged base that he would support any filibuster of attempts to protect telephone companies from lawsuits over their cooperation with the government’s warantless wiretaps. Now Obama defends the law congress just passed which does precisely that.
  6. Iran: Obama was widely criticized as naïve for his declaration that America should meet unconditionally with the leaders of Iran, including by Hillary Clinton and other members of his own party. Unsurprizingly, this is another position he has also “refined.” Indeed, the man whose judgment John Kerry extolls can’t even seem to make up his mind whether Iran poses a threat or not.
  7. Patriotism: Again pandering to his America-loathing base, Obama once refused to wear a flag pin on his lapel and disparaged those who did, claiming it was a “substitute for… true patriotism.” Now, not only is Obama not to be seen without his own “substitute” for patriotism prominently displayed on his chest, but routinely wraps himself in up to 40 American flags at once among other purportedly “patriotic” symbols of his own invention.
  8. His Reverend, mentor and spiritual adviser Jeremiah Wright: The Reverend and church he could no more denounce than he could denounce the black community? Obama denounced them.
  9. Special Interests: Obama often criticized both Hillary and John Edwards for taking money from unions which he described as “special interests.” But now that he is accepting union endorsements, and money, “He now refers respectfully to unions as the representatives of ‘working people’ and says he is ‘thrilled’ by their support.
  10. Cuba: Told Democrat voters in 2004 that it was time to end the Cuba embargo, but assured Cuban-Americans in Florida last August that he would not, “take off the embargo” because it is “an important inducement for change.”
  11. Illegal Immigration: Obama, I’m sure you are by now unfazed to hear, has said both that he would and would not “crack down” on employers who hire illegal immigrants.
  12. Marijuana: The candidate for “change” has also changed his position on the criminalization of marijuana, telling college students he would support decriminalizing pot, and opposing the decriminalization of pot when confronted in a Democrat primary debate.
  13. Abortion: Contradicting his own 100% rating from NARAL, and his vote against the ban on partial birth abortion, Obama has softened, if only slightly, his position on abortion, declaring that “mental distress” shouldn’t count as an exception that would allow partial birth abortion. Well, I suppose he can always favor an exception for “severe mental distress,” since it is clear his campaign has become all about weasel words.

It’s becoming clear what Obama means when he promises “change”, its not political change — he is merely promising to change his position depending on what is most politically expedient for Barack Obama.

All this before the primary campaign has even officially begun! It’s no wonder Obama has Kerry out touting his “judgment”, he’s probably one of the few people on planet Earth that could do it with a straight, albeit very long, face.



Exactly Why Democrats are Dead Wrong on Detainees by American Elephant

The Supreme Court’s repugnant, extra-constitutional 5-4 Boumediene decision last week conferred on illegal combatants more rights than were given to even Nazi’s during WWII. It gave foreign born terrorists, fighting in manners violating the Geneva Conventions, and captured on the battlefield access to American civil courts. The most egregious usurpation of constitutionally granted war powers by the courts in our nation’s history.

Democrats were overjoyed with the decision.

As if in response comes this story from Britain:

Abu Qatada, the radical Islamic cleric described as Osama bin Laden’s “right-hand man in Europe”, has been released from jail after a judge ruled that there were no grounds to keep him in prison.

The decision to allow him to return to his home in London – where he will receive around £1,000 per month in state benefits – made a mockery of the government’s promise to crack down on terror suspects, and embarrassed the Home Office, which had pledged to deport Qatada to Jordan to face terror charges.

Qatada is not only known as “Bin Laden’s right-hand man in Europe,” but is wanted in Jordan for terrorist activity and has been accused of inspiring the attacks on America because videos of his sermons were found among the possessions of Mohammad Atta and other 9/11 hijackers.

The same court that released him previously described him as

“a truly dangerous individual” who was “heavily involved, indeed at the centre of terrorist activities associated with al-Qa’eda”.

In other words, everyone knows he’s a terrorist, everyone knows he is dangerous, but the courts refuse to allow him to be extradicted and have now set him free.

This is precisely why the courts have no business whatsoever involving themselves in the war on terror. It’s a war, not a legal matter. Precisely why the constitution granted sole war making powers to the president, and to a lesser degree congress.

As if to emphasize the risibility of the decision, the court also specifically stated that Qatada is prohibited from receiving visits from Ayman al-Zawahiri, Abu Hamza, and… Osama bin Laden!

Phew. That’s a relief!



Obama’s “Bump” Already Gone by American Elephant

From Gallup:

Obama-McCain Race Reverts to Virtual Tie

Voters are closely divided between Barack Obama and John McCain in Gallup Poll Daily tracking conducted June 12-14, with 44% of national registered voters favoring Obama for president and 42% backing McCain.

Obama had led by as many as seven percentage points in the first few days following Hillary Clinton’s departure from the race…Although the margin between Obama and McCain is now similar to what it was in the last few weeks of the Democratic primary race, the structure of the race looks slightly different than at any other time this year as a result of the relatively high percentage of voters — 15% — not favoring either major-party candidate.

This election will be decided by those “none of the above” voters, and that is good news for John McCain. There is no question the left is very happy with their candidate. Why shouldn’t they be? He is easily the most radical liberal to win the Democrat nomination since at least George McGovern.

So who, then, are these “none of the above” voters? Easy. Moderates of both parties, and conservative Republicans. And while McCain and Obama will split the former — Obama will get none of the latter, they will either vote for McCain, a third party, or no one.

And it looks as though McCain may finally be learning that the way to win is to move right and distinguish himself from Obama rather than trying to move towards the center and out-liberal him. In just one week McCain has done just that on two important issues, first condemning the deplorable Boumediene decision in no uncertain terms, and calling for an end to the moratorium on coastal drilling. Both issues that will go over very well with everyone but the far left.

I wouldn’t be surprised if McCain overtakes Obama in the next round of polling.



Roberts and Scalia Slam Activist Majority by American Elephant

Supreme Court of the United States of America

Welcome Political Machine readers! We hope while you’re here you’ll have a look around and tell us what you think.

Most people don’t read Supreme Court opinions, I think assuming them to be written in dry, indecipherable legal gobbledygook. The opinions of Chief Justice Roberts and Antonin Scalia are anything but. They are exceptionally eloquent and erudite. A pleasure to read — completely accessible to the little guy, like me. I wish more people knew this, because it is a great educational opportunity.

Yesterday’s decision by a bare majority of the liberal justices joined by the erratic Justice Kennedy, who authored the opinion, can be read here.

But I want to present key excerpts from Chief Justice Roberts’ and Justice Scalia’s scathing dissents, compiled by Ed Whelan at National Review’s Bench Memos .

Both make crystal clear just how activist the decision was. They point out step by step the precedent the majority ignored, the tradition they trampled, the constitutional principles they violated and the powers they usurped.

Chief Justice John Roberts

Starting with excerpts from Chief Justice Robert’s dissent (joined by Scalia, Thomas and Alito):

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.

It is grossly premature to pronounce on the detainees’ right to habeas without first assessing whether the remedies the DTA system provides vindicate whatever rights petitioners may claim.

Simply put, the Court’s opinion fails on its own terms. The majority strikes down the statute because it is not an “adequate substitute” for habeas review, but fails to show what rights the detainees have that cannot be vindicated by the DTA system.

The only issue in dispute is the process the Guantanamo prisoners are entitled to use to test the legality of their detention. Hamdi concluded that American citizens detained as enemy combatants are entitled to only limited process, and that much of that process could be supplied by a military tribunal, with review to follow in an Article III court. That is precisely the system we have here. It is adequate to vindicate whatever due process rights petitioners may have.

The Court today invents a sort of reverse facial challenge and applies it with gusto: If there is any scenario in which the statute might be constitutionally infirm, the law must be struck down.

[In the majority’s view,] any interpretation of the statute that would make it an adequate substitute for habeas must be rejected, because Congress could not possibly have intended to enact an adequate substitute for habeas. The Court could have saved itself a lot of trouble if it had simply announced this Catch-22 approach at the beginning rather than the end of its opinion.

So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit—where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine—through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests, has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.

Justice Antonin Scalia

And Justice Scalia’s dissent (joined by Roberts,Thomas and Alito):

Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war…. The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court’s intervention in this military matter is entirely ultra vires.

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today. The President relied on our settled precedent in Johnson v. Eisentrager (1950), when he established the prison at Guantanamo Bay for enemy aliens.

[I]n response [to the Court’s 2006 ruling in Hamdan v. Rumsfeld], Congress, at the President’s request, quickly enacted the Military Commissions Act, emphatically reasserting that it did not want these prisoners filing habeas petitions. It is therefore clear that Congress and the Executive—both political branches—have determined that limiting the role of civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting….What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.

What drives today’s decision is neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated notion of judicial supremacy. The Court says that if the extraterritorial applicability of the Suspension Clause turned on formal notions of sovereignty, “it would be possible for the political branches to govern without legal constraint” in areas beyond the sovereign territory of the United States. That cannot be, the Court says, because it is the duty of this Court to say what the law is. It would be difficult to imagine a more question-begging analysis.… Our power “to say what the law is” is circumscribed by the limits of our statutorily and constitutionally conferred jurisdiction. And that is precisely the question in these cases: whether the Constitution confers habeas jurisdiction on federal courts to decide petitioners’ claims. It is both irrational and arrogant to say that the answer must be yes, because otherwise we would not be supreme.

Putting aside the conclusive precedent of Eisentrager, it is clear that the original understanding of the Suspension Clause was that habeas corpus was not available to aliens abroad, as Judge Randolph’s thorough opinion for the court below detailed.…It is entirely clear that, at English common law, the writ of habeas corpus did not extend beyond the sovereign territory of the Crown.

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today.

If for no other reason, this election is essential. It is imperative to the future of the nation, to the rule of law, that we tip the balance of this court to the strict constructionists who understand judicial restraint, and believe the constitution means what it says. John McCain, despite his many flaws, has promised to appoint just such justices, and with the excellent conservative judicial advisers he has picked to work for him, I believe he will.

Any number of justices may retire during the next four years. One at least, likely two, maybe more. Justice Kennedy, the only remaining “swing” vote, might retire — and these people are all getting up there. Justice Scalia is 72, Justice Kennedy will be 72 next month. Some other members of the court are older. God forbid anything should happen to any of them, but it could.

And while some people argue that McCain wouldn’t be able to get his nominees through anyway — I think he probably can. McCain has a long-nurtured image of getting along with the other side that will buy him political capital in this regard. But even if he doesn’t get his first choices through, McCain’s second and even third choices will be far better than anyone Obama would nominate. Who knows how much damage Obama could do to the judiciary if he were there for four years, let alone eight! He will undoubtedly appoint more Ruth Bader -Ginsburgs — he has named her specifically as the type of justice he would nominate — perhaps even Hillary Clinton. One thing is for certain, Obama’s nominations would devastate judicial restraint in America in ways that would have repercussions for generations.

Remember that when you hear people say they could never vote for McCain. As distasteful as it may be to some proud conservatives, the best interests of the nation require it, don’t they?

(h/t Bench Memos)

UPDATE: John McCain has come down forcefully against the decision, calling it, appropriately, “one of the worst decisions in the history of this country.” Good. It is!



Supreme Court Rejects Democrats Attempts to Protect Vote Fraud by American Elephant

Supreme Court of the United States of America

The Supreme Court has rejected Democrats ridiculous claims that requiring voters to show identification, proving they are actually entitled to vote, is somehow unfair to minorities, the elderly or the poor. The 6-3 decision upholds an Indiana law intended to prevent vote fraud.

The Indiana law was passed in 2005. Democrats and civil rights groups opposed it as unconstitutional and called it a thinly veiled effort to discourage groups of voters who tend to prefer Democrats.

Yes, a thinly veiled effort to discourage illegal aliens, dead people, pets, comic book characters, convicted felons aka “groups who prefer Democrats.”




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