American Elephants


CONFIRMED! by The Elephant's Child

Judge Brett Kavanaugh has been confirmed. He will serve as the 114th justice to serve on the United States Supreme Court.

He was confirmed by the United States Senate by a vote of 50-48. A confirmation of a fine and honorable man in spite of false attacks and scurrilous character assassination. As Victor Davis Hanson wrote:

As a Supreme Court justice, Kavanaugh would have withstood every imaginable smear and slander and yet stayed defiant in defending his character and past, proof of both his determination and principles. His near-solitary rebuttal to his Senate accusers may suggest that Kavanaugh could prove to be among the most fearless justices on the Court.

Indeed, the only lasting effect, if any, of the serial smears lodged against him might be that in the future, as in the case of Justice Thomas, Kavanaugh would be essentially immune from progressive media attacks. What he went through likely has inoculated him from the Georgetown-party-circuit syndrome of conservative Supreme Court judges’ eventually becoming more liberal by the insidious socialization within the larger D.C. progressive media, political, and cultural landscape.

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The Kavanaugh Affair, Continued… by The Elephant's Child

From Victor Davis Hanson:

Just when observers had concluded the desperate progressive opposition to Brett Kavanaugh’s nomination to the U.S. Supreme Court could not stoop much lower, it most certainly did.

Senator Dianne Feinstein (D-Calif.), in the news recently for somehow unknowingly employing a Chinese spy as her gofer and chauffeur for 20 years, passed on information to federal investigators that weeks ago had come to her attention from an unnamed, unidentified, and anonymous female who claimed she was a high school acquaintance of Kavanaugh’s. Apparently, we were to believe that the once-anonymous informant had harbored a long-simmering, but heretofore never-voiced complaint of sexual assault against Kavanaugh, which coincidentally reached a peak of unsustainable resentment at the time of his nomination to the highest court in the land.

After days of gossip and innuendo to the effect that the likely next Supreme Court Justice might just be some sort of pervert, Anonymous finally came forward and identified herself as a victim of a then 17-year-old inebriated Brett Kavanaugh who (she says) sexually manhandled her in 1982 when she was 15. More specifically, the woman now alleges that Kavanaugh and another student at a high-school party entered a room inebriated, pinned her to a bed, and then groped her while she was clothed. Young Kavanaugh then allegedly attempted to take her clothes off her while he and his classmate, Mark Judge, both laughed “maniacally.” She adds that she had sought “medical treatment” for her unspecified injuries.

Here’s Paul Mirengoff ( a lawyer) at Powerline: “Another Kavanaugh Accuser Comes after Dem Lawyer Persuades Her She’s A Victim

Scott Johnson (also a lawyer) at Powerline adds:

Nevertheless, the Democrats may have achieved liftoff. According to FOX News, creepy porn lawyer Michael Avenatti has apparently let it be known #HeToo has a client waiting in the wings.

And here’s Steven Hayward, also at Powerline:  “I Told You So”

Steven Hayward adds his “Week in Pictures” which is all the jokes and cartoons of the week, this week mostly about the Kavanaugh affair. As he says, “there isn’t a black hole large enough to swallow up the liberal hypocrisy over this whole business.”

They started this thing off with a lengthy conversation about how if Brett Kavanaugh was confirmed to the Supreme Court , he would immediately ban legal abortions. Women everywhere had to rise up and get their congresspeople to dump Kavanaugh. Now, that Ms. Christine Blaney Ford has been identified as the accuser, and admits that her recollection is rather fuzzy at best, and needs protection from death threats (?) but her biggest accusation seems to be “groping” — the helpful media keeps referring to it as “rape” which nobody’s accused anybody about.

I seem to remember some Democrat, long ago, saying something about “you drag a hundred dollar bill through a trailer camp…”



President Trump Once Again Fulfills his Promise by The Elephant's Child

President Trump has nominated Brett Kavanaugh for the Supreme Court to replace the retiring Justice Anthony Kennedy. Judge Kavanaugh has served for 12 years on the D.C. Circuit Court of Appeals, and has written more than 300 opinions that involve every significant constitutional issue including separation of powers and federalism. The Supreme Court has adopted the logic of 11 of his opinions in whole or in part. He is among a younger generation of judges who base their rulings on the text of the Constitution and Congressional statute. He has the experience and intellect to be a leader on the Court, rather than a predictable vote on an issue.

Naturally, the Left has erupted with the usual silliness. Kavanaugh will end Roe v. Wade, put gay men in jail, and whatever else they can come up with.  That’s not how the Supreme Court operates. They are the court of last resort whose duty is to apply and defend the United States Constitution to the particular case before them. Mr. Trump promised to select a Justice “who will faithfully interpret the Constitution as written,” and that is just what he has done.  Judge Kavanaugh has a record that suggests that he will help to restore the Supreme Court to its proper, more modest role in American politics and American society.

The serious and thoughtful men who wrote and adopted the U.S. Constitution were intent on preserving the freedoms and rights that the country had just fought a long bloody war about. They recognized the imperfect nature of mankind and how easily freedom could be lost to bad ideas. And we always have a remarkable quantity of bad ideas in our society as in any society.

The hard Left just won an election in a safe Democratic district with a young “Democratic Socialist” who is remarkably free from any knowledge of history, politics or international affairs. Dumb as a post. And she tried to palm herself off as just a girl from the Bronx, not. She left the Bronx as a small child and grew up in a tony Westchester suburb with her successful well-to-do architect father. But she had the Hispanic name for a district that is largely Hispanic

Here’s the Wall Street Journal’s take on Judge Kavanaugh, and here is John Hinderaker at Powerline.



Tax Hungry States Are Going After Internet Retailers by The Elephant's Child

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The rise of internet retailers is changing the world of retailing. There are still lots of customers who want to see the product in person, or in the case of clothing—try it on. For clothing and shoes, buying on the internet gets pretty iffy unless you reliably fit a standard size. But for the states, sales and use taxes are a very big deal,

The Commerce Clause “gives Congress the power to regulate trade “among the several States.”

The state of Alabama is openly defying the U.S. Supreme Court in an effort to squeeze millions of dollars of tax revenue from businesses beyond its borders. Tax officials in Montgomery are insisting that out-of-state firms must, effective Jan. 1, collect and remit sales and use taxes if they annually sell over $250,000 in tangible goods to Alabamans.

This unconstitutional tax grab cuts to the heart of the Commerce Clause, which gives Congress the power to regulate trade “among the several States.” Alabama’s regulation directly contravenes the Supreme Court’s 1992 ruling in Quill v. North Dakota. In that case, the court held that North Dakota could not require an out-of-state office-supply company to collect sales taxes because the firm had no offices or employees there.

To get around that, Alabama’s revenue commissioner, Julie Magee, is putting forward an untested and suspect legal theory: The state claims that if its residents buy more than $250,000 a year from a remote business, then the seller has an “economic presence” and should be treated the same as a brick-and-mortar shop in Mobile or Birmingham.

That will be headed back to court. Online retailers, or catalog retailers have three options— they can assume that since the new regulation from Alabama violates Quill they can disregard it, in which case they would face tax assessments and audits from Montgomery. They can comply with the regulation and start collecting Alabama’s taxes, or they can simply quit selling their products in Alabama.

I have worked in the head office of a major retailer who sends out millions of catalogs and has stores in most states, and simply pays taxes in every state, for if they don’t have a store there they probably will soon. In the current climate, many chains are closing unprofitable stores, including Walmart, the nation’s largest employer.

Lots of catalog companies have gone out of business, as have many retailers who do maintain a physical presence. Retail business changes with the economy. But proposals like Alabama’s hit small online retailers particularly hard. Rep. Bob Goodlatte (R-VA) proposes focusing tax collection on the seller’s location. A small online retailer would pay taxes only from the state where it actually operates.

Congress needs to legislate, or tax-hungry states will attempt to overturn the Supreme Court Quill decision by regulatory fiat even if it circumvents the legislative process. It’s complicated, but a very big deal for online retailers. Amazon is working hard on the delivery issue, trying to cut down the time it takes to get a package to a consumer, in order to make ordering online more attractive. And not just delivery by drones. There is plenty of room for a cooperative effort to be fair to everybody, including the customers and the states.

I order from small online retailers who do not have a physical presence in my state. I’ve seen way too many of my favorite small retail shops go out of business. Successful retailing is hard, and not many businesses thrive for a very long time, especially in a climate of heavy governmental regulation. It’s easier to find something new to tax, or a new tax to impose, than it is to be a very good manager of changing economic conditions in your own state.

The battle between government and business has gone on since time immemorial, but everyone is better off when governments recognize that economic growth doesn’t happen in the government sector. A good business climate benefits everyone.



ObamaCare Comes Before the Court Next Week. by The Elephant's Child

ObamaCare will be argued next week in the Supreme Court. The justices will be considering the application of the health care law in the light of the United States Constitution. While the justices consider the constitutionality of the law, most of the arguments have to do with the economics of the law.

We were lied to in the first place, directly and purposefully. It was necessary for Democrats to drum up nationalized health care in the back rooms of Congress, because the costs of health care were spiraling out of control, and the only solution was socialized medicine the Affordable Care Act and Patient Protection something or other.  That was not true. Medical costs had been moving downwards towards the normal rate of inflation for a decade. There was NO emergency.

Consider the individual mandate to purchase health insurance. The Obama administration defends the mandate on the ground that a person’s decision to not buy health insurance affects commerce by materially increasing the costs of others’ health insurance. The government adds that health care is unique and therefore can be regulated constitutionally in ways other markets cannot.

The government’s other defense is that the health-care market does not exhibit textbook competition. No market does. The economic features relied upon by the government…are characteristic of many  markets.

Health care, Douglas Holtz-Eakin, and Vernon L. Smith point out, is typically consumed locally, and health-insurance markets themselves primarily operate within the states.

The administration’s attempt to fashion a singular, universal solution is not necessary to deal with the variegated issues arising in these markets. States have taken the lead in pas reform efforts.  They should be an integral part of improving the functioning of health-care and health-insurance markets.

Mr. Holtz-Eakin is a former director of the Congressional Budget Office, and president of the American Action Forum. Mr. Smith is a professor of economics at Chapman University and the 2002 Noble Laureate in Economics.

Professor Richard Epstein argues that the health law’s expansion of Medicaid is problematical. An expenditure of federal funds is unconstitutional when it coerces states rather than encouraging them to participate in a federal policy. ObamaCare transforms Medicaid from a health-care program for the poor into a mandatory federal entitlement— obligatory on both the states and the beneficiaries alike.

What the Supreme Court will do is completely unknown. Speculation does not help. Kind thoughts, prayer, voodoo dolls and worrying probably won’t help either, but  you might try your favorite remedy anyway.




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