American Elephants


A Strong Rebuke to the President of the United States by The Elephant's Child

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On Tuesday the Supreme Court issued a stay that blocked the federal government from implementing a series of far-reaching environmental regulations that essentially crippled the entire coal industry. The rules were issued by the Environmental Protection Agency as part of President Obama’s attempt to force America’s energy sector to reduce their carbon emissions to conform to the administration’s demands.

Once again acting on his “presidential authority,” the president was making laws that would close hundreds of coal-fired power plants, because the president believes that CO2 is a pollutant (it is not) and that CO2 is the cause of global warming (it is not). Mr. Obama was trying to set an example for other countries to do the same, to comply with the unenforceable agreement that came out of the Paris Climate Talks—COP21.

Because of a 5-4 majority on the court, nothing will be done to implement those changes until an appeals court can formally rule on a challenge brought by 27 states, and corporate and industry groups against the EPA. What the Supreme Court has done is to restore some sense of accountability to an agency that has attempted to become a legislative body without any authority to do so.

The appellate courts will now have to give the 27 states the opportunity to make their case. The Supreme Court is not just saving the jobs of coal miners and the economy in several states, but calls attention to the rule of law at a time when the president of the United States has come to believe that he doesn’t have to bother with the consent of Congress. He just rewrites the law and dares the critics to stop him.

That stay will remain in effect through the end of Mr. Obama’s presidency, until the Supreme Court has a chance to hear the case—in 2017 at the earliest. The stay sends the strongest possible signal that the court is prepared to strike down the Clean Power Plan on the merits, assuming the next president doesn’t revoke it.

Not since the court blocked President Harry Truman’s seizure of the steel industry has it so severely rebuked a president’s abuse of power. …

In a ruling two years ago the court held that the EPA couldn’t conjure up authority to make “decisions of vast economic and political significance” absent a clear statement from Congress. Thus, the EPA may have the authority to require power plants to operate more efficiently and to install reasonable emissions-reduction technologies. But nothing authorizes the agency to pick winners (solar, wind) and losers (coal) and order generation to be shifted from one to the other, disrupting billion-dollar industries in the process.

The EPA has been rebuked by the courts repeatedly. In January the House joined the Senate in trying to stop another of Obama’s “power grabs” — the EPA’s attempt to seize control of virtually all waterways across the country. The federal government has used the EPA as its proxy and the Clean Water Act to enact its ideas about controlling privately owned land through the regulation of waterways. This year they extended, without congressional input, their authority through the 1972  Clean Water Act.

The Obama administration excused this attempted appropriation as nothing more than an effort to save the nation’s streams, headwaters, creeks and wetlands from “pollution and degradation.” In reality, the EPA simply wanted to expand its command over such near-waterless features as dry creeks, potholes and puddles . Under this regime, private individuals or businesses would need government permission to do anything on their property that is even remotely related to water — such as digging a drainage ditch — giving Washington sweeping powers over private lands.

A federal judge told the EPA last August that they had gone too far, but they just shrugged and said they would enforce the rule in the 37 states that were not part of the lawsuit. “Administrative Law” is one of those innocuous phrases in which the Left excels, like the substitution of  “extremist” for “terrorist.” But you must pay attention to the real meaning — which is the substitution of agency regulation and presidential orders or directions or memos  for the lawful actions of Congress. As Jonathan Turley, professor of Law at George Washington University said:

“What the president is doing is not one of the dangers
the Framers were concerned about; it is the danger
the Framers were concerned about.”



Excuse Me, It’s a Tax—Not a Mandate—It’s a Tax. by The Elephant's Child

Here is Obama’s Chief of Staff Jack Lew, asserting the denial in the administration of the Supreme Court verdict. If the law forces those who are unwilling to buy government health insurance to pay a tax as a penalty — taxes are more easily disposed of.

Obama doesn’t want to be seen as a baldfaced liar; yet we have extensive evidence of his claim that he will not raise taxes on the middle class, that you can keep your health insurance if you like what you have, and that you can keep your doctor. All hooey. Seventy-five percent of the cost of ObamaCare will fall on those making less than $120,000 a year.   And that’s on top of the Tax Armageddon that arrive on January 1, 2013.

Cato says that taxes are of three types — income, excise, or direct.  Each type must meet specified constitutional constraints. Because the mandate penalty tax under PPACA does not satisfy any of the constraints, it is not a valid tax.So the law could be challenged on that basis. Or it becomes much easier for Congress to repeal. It’s going to be interesting.

Don’t miss the Solicitor General’s testimony before the Supreme Court. It’s a tax, a tax, a tax.



Act of Great Cunning? Too Clever By Half? Complete Disaster? by The Elephant's Child

The ObamaCare decision was a shock. We had been hearing about the huge numbers of  the public who wanted ObamaCare repealed. Intrade was running over 70% for repeal.  And Chief Justice Roberts joined the left to uphold ObamaCare. For many Republicans, the instant reaction was outrage.

With Justice Anthony Kennedy, who is often the swing vote, joining the conservative members of the court, we seemed to have repeal guaranteed and Chief Justice Roberts voted to uphold. Why?

Trying to understand was interrupted by a more plebeian problem, of the plumbing variety. You know how it goes. You try all the home remedies hoping to avoid having to call the plumber, and it’s always late on Friday or on the weekend, when the cost is way higher.  Nevermind. You know how it goes.

Here are a variety of serious people with fine minds offering their take:

Paul Rahe is a professor of History at Hillsdale College and an outspoken critic of ObamaCare.

Sean Trende is Senior Elections Analyst for Real Clear Politics.

Timothy Dalrymple writing at Patheos after listening to a talk from Paul Clement, who argued the case.

Mark Tapscott. Executive Editor of the Washington Examiner.

Richard Epstein Professor of Law at University of Chicago and NYU School of Law. Senior Fellow at the Hoover Institution.

Joshua Hawley Now a Law Professor, but a former clerk to Chief Justice Roberts.

Randy Barnett Professor of Constitutional Law at Georgetown Law, and a member of the team that argued the case before the Supreme Court.

You can easily find all sorts of articles filled with outrage.  These are more thoughtful. The Wall Street Journal has several pieces, but is behind a subscription barrier.



The Final Verdict by The Elephant's Child

Just Another Broken Promise by The Elephant's Child

The tax increases imbedded in ObamaCare add up to $1.7 trillion over the next ten years, according to the CBO. The”mandate” which they sometimes called a “penalty”—which you have to pay if you don’t buy the health insurance the government ordered you to buy — has been clarified by the Supreme Court. It is a tax.

 



Supreme Court Takes a Dim View of Obama’s Immigration Law Claim by The Elephant's Child

Arizona has had a major problem with illegal immigration, and the Obama administration’s reluctance to enforce immigration laws. So Arizona decided to enforce federal immigration laws themselves. They just wanted the Immigration laws on the books to be enforced.

The Arizona law requires law enforcement officers to check the immigration status of those they suspect are in the country illegally and check with federal officials to verify. They would also write new state penalties for illegal immigrants who try to apply for jobs.

The Obama administration sued, arguing that those provisions conflict with the federal government’s own role in setting immigration policy.The government argued that it’s fine when it’s on a limited basis, but having a state mandate for all of its law enforcement is essentially a method of trying to force the federal government to change its priorities. Solicitor General Donald Verrilli said the federal government has limited resources and should have the right to determine the extent of calls it gets about possible illegal immigrants. These decisions have to be made at the national level. (I love the argument about limited resources).

The justices took a dim view of the administration’s claim that it can stop Arizona from enforcing immigration laws.  They told the government lawyers that the state appears to want to push federal officials, not conflict with them.

“It seems to me the federal government just doesn’t want to know who’s here illegally,” Chief Justice John Roberts said at one point.

Senator Charles Schumer (D-NY), a critic of the Arizona law, said that if the court does uphold the state’s law, he will introduce legislation to overturn that decision and grant the federal government sole control on immigration matters. That legislation would also overturn a 2011 Supreme Court case that upheld a separate Arizona law that requires all businesses in the state to check employees’ legal status using E-Verify, the federal government’s electronic verification system.

Illegal immigration looks a little different in Washington D.C. where Hispanic votes are especially important to those who divide the electorate into voting groups; and in Arizona where illegal immigration is rife and the drug war just across the border is killing citizens.

The decision will come down in June.



The ObamaCare Arguments: Day Two. by The Elephant's Child

The long article about Attorney Paul Clement, now arguing the case against ObamaCare before the Supreme Court opens gracefully:

A little before noon on March 23, 2010, President Obama sat at a desk in the East Room of the White House, where—surrounded by Joe Biden, Nancy Pelosi, and Ted Kennedy’s widow, among others—he signed the Patient Protection and Affordable Care Act into law. It was, as Biden memorably told Obama, “a big fucking deal.” Seven minutes later, at the U.S. Courthouse in Pensacola, Florida, thirteen state attorneys general—all but one of them Republicans—filed a lawsuit seeking to overturn Obama­care. It was, as one legal expert told the Pensacola News Journal in the next day’s paper, “a political lawsuit [likely to] be dismissed.” In fact, most papers on March 24 barely reported on the suit’s filing; the New York Times devoted just one sentence to it.

Two years later, that lawsuit—which now includes 26 states, the National Federation of Independent Businesses, and two small-business owners as plaintiffs—sits before the Supreme Court.

Most of us are familiar with the Justices, but the attorneys who argue the case are unknown except to Washington insiders and Court watchers. The administration’s case is being argued by Solicitor General Donald Verrilli, who has been called one of the best lawyers in the country.

The case for the plaintiffs — 26 states, the National Federation of Independent Business, and two small-business owners — is argued by Attorney Paul Clement, who was Solicitor General in the Bush administration. He is widely regarded as one of the finest lawyers of the last century.

The second day of argument was rough going for the government. General Verrilli had a difficult time defending the mandate. The Justices failed to elicit from Mr. Verrilli some limiting principle under the Commerce Clause that would distinguish a health plan mandate from any other purchase mandate that would easily be unconstitutional.

United States Department of Health and Human Services, et al.
v. The State of Florida, et al.

Attorney Paul Clement arguing for the State of Florida et al.

Solicitor General Donald Verrilli arguing for HHS et al.

Wednesday is the final day of arguments. The arguments will be about severability— can the mandate be overturned and the law survive — in the morning, and in the afternoon the expansion of Medicaid onto the states.  Then we wait.  The decision will come down supposedly some time in June. And that will be a very big deal indeed.




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