Tuesday, April 20, 2010

Policemen Do Not Wear Pink Dresses

From, a reprinted CNBC report by Shelly K. Schwartz beginning:
Medical marijuana is casting a cloud of confusion over Corporate America.

Pot is legal in 14 states as a prescription painkiller, leaving employers struggling to reconcile zero-tolerance drug policies with a patient's right to get high...
Do the editors and CNBC and USA Today not know that there is a difference between something being legal and having a "right" to do it, including at work?

It is legal, for example, for men to wear frilly pink dresses, but that does not confer a right to male police officers to wear them while on patrol.

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Posted by Amy Ridenour at 9:55 AM

Monday, April 19, 2010

The New Republic States the Obvious

Today's New Republic has what seems an unnecessary story: "Why Elena Kagan Has Earned the Respect of Conservatives, Like Me."

Isn't her reason obvious? A liberal jurist who choose a career trajectory that would put her in line for a possible high court appointment is more likely to get confirmed if she has earned conservatives' respect, even when the President is a Democrat and the Senate is in Democrat control.

People who get tapped for Supreme Court appointments these days don't get chosen unless they structured their careers and public (and to some extent, private) actions accordingly, and being respected by the "other side" is part of that equation.

P.S. Turns out the article isn't about why Elena Kagan has earned the respect of conservatives like [such as] the author, but how she did it -- by being civil to conservatives and by supporting former clerks of Supreme Court Justices Scalia and Kennedy for positions at Harvard, in addition to leftists.

In an era in which "bork" remains a verb, it evidently takes very little for a liberal lawyer to earn respect from at least one conservative.

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Posted by Amy Ridenour at 11:42 AM

Friday, April 09, 2010

Our Bart Stupak Story

Bart Stupak: Good riddance to a dangerous Congressman.

Most of you will suppose I'm referencing Bart Stupak's double-cross of the pro-life movement, but that's not the only thing. In the late 1990s, Stupak tried to have this institution charged with a federal crime for publishing materials inconvenient to the left on health care issues.

Up to then, I had naively supposed prosecutors didn't investigate policy disagreements in America.

The issue in question was Section 4507 of the 1997 Balanced Budget Act, which prohibited Medicare patients from contracting privately with medical doctors unless the doctor opted out of the Medicare system for at least two years, among other requirements.

Here's how Steve Forbes described it in the American Enterprise Institute's magazine (11/1/97):
...buried in the 1,200-page budget bill is a nasty, little-known provision, Section 4507, that begins to write socialized medicine into law. Starting January 1, 1998, American doctors will effectively be prohibited from treating elderly patients on a private basis outside of the Medicare program.

The government health care bureaucracy had already been using its regulatory powers to forbid doctors who accept Medicare patients from also treating senior citizens who choose to pay out of-pocket. Republicans originally tried to insert into the budget agreement a provision that would overturn this regulation, but President Clinton protested and the Republicans caved in.

Since over 90 percent of doctors accept Medicare patients, this law makes it nearly impossible for seniors to find a doctor who will also treat them on a private basis, outside Medicare's rules and regulations. Only doctors in the very wealthiest areas will be available to seniors hoping to engage in private health care between consenting adults. Astonishingly, even Britain, mother of socialized medicine, allows patients to contract privately with physicians. Senator Jon Kyl (R-Ariz.) is leading the charge to repeal Section 4507. He points out that the current law is the equivalent of forbidding everyone enrolled in Social Security from also investing his own money privately with stockbrokers: Such a law "would be met with disbelief and derision," yet it is no different from what the new Medicare law does.
To seniors, especially those not living in big cities, this had the effect of making some medical procedures unavailable to them unless they travelled long distances, as in small towns there might not be a single doctor providing the services they desired who also was willing to forgo treating anyone receiving Medicare for two years.

To conservatives, this provision was a step forward for government control of medicine and a violation of the civil rights of senior citizens.

To liberals, including the Clinton Administration, it was a way to restrict private involvement in health care. They further argued that doctors would overcharge vulnerable seniors for services, and that it would be better for seniors to be denied certain services entirely than to risk being overcharged privately.

Section 4507 received scant public attention when the Balanced Budget Act of 1997 was adopted, but seniors soon began to report difficulties. Simple and inexpensive tests sought by people with diabetes or concern that they might have diabetes, for example, were not in all circumstances covered by Medicare, and now seniors could not get them unless they found a doctor who had entirely opted out of Medicare. Similarly, men over 65 were barred from privately contracting with doctors for screening tests for prostate cancer, although Medicare did not cover these tests for men without symptoms. And there were other examples.

We, along with several other institutions (not all of them conservative), began to call attention to the detrimental impacts of Section 4507 on seniors. One think-tank published a book. Another published numerous papers and held at least one symposium. A seniors group filed suit in federal court on civil rights grounds. And a U.S. Senator (Jon Kyl) and the then-chairman of the House Ways and Means Committee (Bill Archer) introduced joint legislation to repeal Section 4507.

Our work on this was routine for a think-tank. We published informational materials on it for the public and policymakers (for example, this, posted online at that time), press materials (for example, here) for talk radio hosts and editorial writers, and collected petitions from the public about Section 4507 and sent them to Congress.

Routine work, that is, until we got a phone call from a federal investigator. Rep. Bart Stupak, we were told, had a received a copy of some of our materials and had contacted law enforcement, alleging that the Section 4507 did not do what we claimed it did, and that our claims constituted mail fraud.

To me, this was preposterous, and as I was naive back then, I told the investigator to come over, and I'd share information about the provision with him. I didn't contact legal counsel, as I did not want to waste donors' money on such a ridiculous and (I thought) easily-rebutted allegation.

The investigator came over, and I showed him the book, and the policy papers by other institutions, and information about the Kyl-Archer bill to repeal, and press materials by the seniors group that had filed suit in federal court. The investigator, however, was unmoved. Just because other groups are saying the same thing you are, he said, doesn't make you right. Instead, he said, it is evidence of a conspiracy.

I was taken aback, as one might expect, and the investigator added his coup de grace: the Congressional Research Service says all of you are wrong on this, he said, and what did I have to say to that? He made it clear he considered the CRS the final authority, and believed that publishing anything to the contrary and mailing it would constitute mail fraud. I hadn't read what the CRS said, so I couldn't comment on its position. The investigator left, and faxed me the CRS document soon after, with a cover note that wasn't promising. The CRS document itself, however, was: The CRS agreed with our position entirely.

None of this should have happened, but it didn't end there. Before long, we received a subpoena from the U.S. Justice Department requiring us to turn over all documents, communications, etc. relating to our work on Section 4507. We complied, and also involved counsel. Our attorney phoned the Justice Department attorney whose name was on the subpoena and pointed out that First Amendment protects our right to publish as we see fit on public policy issues. In fact, he said, the investigator's entire line of questioning as to whether our papers were correct was inappropriate, as people have a constitutional right to publish things the government disagrees with. The Justice Department attorney told him she in fact agreed with him, but that, because of superiors, her hands were tied on the case. So we had to consider ourselves under active investigation.

We didn't hear anything from them for about two years (to the best of my recollection, between the 2000 presidential election and Bush's inauguration), when the DOJ returned all our subpoenaed documents. We never found out anything more about who at DOJ had considered the case worth investigating, but we couldn't help thinking it was someone inclined to discourage conservative groups from working on health care. No charges were ever brought.

So now that Congressman Bart Stupak, whose office thought it was perfectly proper to sic federal law enforcement on a conservative organization simply for publishing perfectly accurate materials inconvenient to the liberal big-government position, has decided to retire, I say good riddance. We don't need any Congressmen, on the left or the right, who believe in criminalizing policy disagreements, and who oppose the people's right to free speech.

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Posted by Amy Ridenour at 2:53 PM

Thursday, March 18, 2010

Investor's Business Daily Cites Us on Constitutionality of Self-Executing Rule

InvestorsBusinessDailyLogoFuzzy.jpgInvestor's Business Daily was kind enough to quote this blog in an editorial.

An excerpt:
Using a parliamentary trick ironically known as the "self-executing rule," Democrats plan on passing their massive health bill without voting. In November, they'll learn just how "self-executing" it was.

Just when you thought Washington couldn't get more corrupt, House Speaker Nancy Pelosi this week seems intent on trampling representative government itself. Unable to get the votes to pass their U.S. health care revolution, she and her fellow Democratic leaders have figured out a way to pass it without a vote.

The "self-executing rule" has been "used to adopt concurrent resolutions correcting the enrollment of measures or to make other technical changes to legislation," according to the Congressional Research Service of the Library of Congress.

It's "a two-for-one procedure," as the CRS describes it, because the House of Representatives always must pass a rule, written by the House Rules Committee (where Democrats hold a 9-to-4 majority), setting the terms of debate on a particular piece of legislation. In this case, it's been rigged so that if the rule passes, the legislation passes too.

The trick has been used before, as cited by the CRS, on obscure measures like the prohibition of smoking on airline flights in 1989, an employee verification program regarding illegal aliens in 1996, the blocking of the use of statistical sampling for the 2000 census until federal courts could determine its constitutionality, and an IRS overhaul in 1997.

But never on anything approaching such landmark legislation.

Amy Ridenour, president of the National Center for Public Policy Research, is among a number of legal scholars who believe this Slaughter Solution, named after House Rules Committee Chairwoman Louise Slaughter, D-N.Y., "would stand a very good chance of being tossed out by the U.S. Supreme Court."

In the 1998 Clinton v. City of New York ruling on the line-item veto, liberal Justice John Paul Stevens, writing for a 6-to-3 majority, "laid a likely road map for how the court might rule on a challenge to the constitutionality of the Slaughter Solution," according to Ridenour.

Stevens made note of "three procedural steps" that must be taken before a bill becomes law: The "exact text" must be "approved by a majority of the members of the House of Representatives"; the Senate must approve "precisely the same text"; and the same text must be "signed into law by the president. The Constitution explicitly requires that each of those three steps be taken before a bill may become a law."
There's more. You can read the rest here.

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Posted by Amy Ridenour at 9:42 PM

Sunday, March 14, 2010

Slaughter Solution Unconstitutional

John_Paul_Stevens,_SCOTUS_photo_portrait.jpgJustice Stevens' majority opinion in Clinton v. New York signals the Supreme Court's likely view of the Slaughter Solution

Frustrated by their inability to get President Obama's health care plan through Congress, the House leadership is now considering a mad new scheme, dubbed the "Slaughter Solution," to get the Senate version of the bill through a reluctant House.

As described by Mark Tapscott of the Washington Examiner, the Slaughter Solution would "pass [the] legislation by 'deeming' it approved under a House rule instead of following the process required by the U.S. Constitution in which they actually vote on the proposal itself... Slaughter's approach would bring to the House floor a reconcilliation bill to resolve differences between the House and Senate versions of health care reform with the rule deeming the House to have approved the Senate version."

Mark goes on to say a senior House of Representatives GOP staffer has told him the Republicans can find no evidence such a ploy has ever been tried before in the history of the House.

In my view, there's a good reason why not: the legislation would stand a very good chance of being tossed out by the U.S. Supreme Court.

A dozen years ago, in a 6-3 decision, the U.S. Supreme Court ruled the line item veto unconstitutional in Clinton v. City of New York, 524 U.S. 417 (1998).

Writing for the majority, Justice John Paul Stevens laid a likely roadmap for how the Court might rule on a challenge to the constitutionality of the Slaughter Solution:
...our decision rests on the narrow ground that the procedures authorized by the Line Item Veto Act are not authorized by the Constitution. The Balanced Budget Act of 1997 is a 500-page document that became 'Public Law 105--33' after three procedural steps were taken: (1) a bill containing its exact text was approved by a majority of the Members of the House of Representatives; (2) the Senate approved precisely the same text; and (3) that text was signed into law by the President. The Constitution explicitly requires that each of those three steps be taken before a bill may 'become a law.' Art. I, §7. If one paragraph of that text had been omitted at any one of those three stages, Public Law 105--33 would not have been validly enacted. [Emphasis added] If the Line Item Veto Act were valid, it would authorize the President to create a different law - one whose text was not voted on by either House of Congress or presented to the President for signature. Something that might be known as 'Public Law 105--33 as modified by the President' may or may not be desirable, but it is surely not a document that may 'become a law' pursuant to the procedures designed by the Framers of Article I, §7, of the Constitution.
Whether one agrees or disagrees with the Court in the line item veto case, one cannot deny that the majority decision here is a powerful sign that the Slaughter Solution would not be ruled constitutional by the U.S. Supreme Court.

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Posted by Amy Ridenour at 6:40 PM

Friday, January 29, 2010

Did 60 Senators Violate the Law?

James O'Keefe has been charged under Title 18, Section 1036 of the U.S. Code, which prohibits persons from entering "any real property belonging in whole or in part to, or leased by, the United States... by any fraud or false pretense."

My question is, why hasn't Landrieu been arrested? Didn't she take an oath to uphold the Constitution, but then vote for a health care bill with unconstitutional provisions on December 24?

Didn't all the 60 Senators who voted for it violate the law when they entered their publicly-owned offices on December 24?

Tell you what... Dismiss the charges against O'Keefe and give the 60 Senators a pass this time on their "fine... or imprisonment for not more than 6 months, or both..."

Or charge the Senators, too.

I'm fine with it either way.

Written by David A. Ridenour, vice president of the National Center for Public Policy Research. Write the author at [email protected]. As we occasionally reprint letters on the blog, please note if you prefer that your correspondence be kept private, or only published anonymously.

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Posted by David A. Ridenour at 6:38 PM

Thoughts on Barack Obama's Attack on the Court


Following the obligatory full disclosure that the National Center for Public Policy Research was not exactly neutral in the case of Citizens United v. FEC when it went before the Supreme Court (we supported and signed on to an amicus brief in the case spearheaded by the Free Speech Coalition last year), I want to slightly defend President Obama vis-a-vis his erroneous remarks about the case during the State of the Union address.

Yes, Justice Samuel Alito was right (Bradley Smith, a campaign finance expert and law professor, proves it succinctly here), and President Obama wrong, on the facts.

But in regards to those who are calling the President a liar on the matter: I doubt it because I doubt the President knew the facts of the case before he spoke. Unlike our last Democratic President, Barack Obama has never been particularly interested in issues, and his speechwriters draw heavily from left-wing sources without fact-checking (as when they blindly trusted Slate's Timothy Noah when drafting Obama's health care speech to the joint session of Congress).

The left-wing position on Citizens United, as Democracy 21 put it, is that a loophole now exists in the law because, although foreign corporations are banned from influencing elections, "there is no statutory prohibition against foreign-controlled domestic corporations from making expenditures to influence federal elections."

But the absence of a statute is not the fault of the Supreme Court, and President Obama and the left is wrong to criticize the Court for it. Congress had plenty of time to anticipate Citizens United v. FEC and to pass legislation to deal with this or any other loophole if it believes a loophole exists.

The Supreme Court agreed to hear Citizens United v. FEC in August 2008. The Court heard arguments on it twice (March and September 2009), which led court-watchers to expect that major parts of McCain-Feingold would be struck down. Any legislation affecting the influence of foreign-controlled domestic corporations on U.S. elections would have received extensive bi-partisan support. Yet Congress didn't pass it, and Obama never asked it to try.

The Supreme Court had one duty: to apply the Constitution. President Obama was criticizing the court on public policy grounds the Court would have been out of line to consider.

The role of the Supreme Court is something about which leftists in general tend to be willfully ignorant. For example, in comments about this case, Josh Glasstetter of the popular left-wing Crooks and Liars blog not only ignored the fact that the Supreme Court is supposed to be neutral on policy impacts, but he exaggerated the decision's impact immensely:
[The Supreme Court justices voting in the majority] don't seem to mind that Lukoil (Kremlin Inc.), Citgo (Hugo Chavez LLC), Aramco (King Fahd and Sons Co.), and countless other multinational corporations - including those run as business arms of foreign governments - now have a free hand to influence the government from top to bottom.
If it so chose, Congress could plug any loophole being exploited by Hugo Chavez long before November. Who would vote against it?

So I defend the President on the charge that he lied when he claimed the decision opened "the floodgates for special interests — including foreign corporations — to spend without limit in our elections," because I doubt he knew any better, but I don't excuse him for acting as if the Supreme Court and the Congress have the same responsibilities.

He's a former law professor, for heaven's sake!

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Posted by Amy Ridenour at 1:12 AM

Friday, January 22, 2010

International Bureaucrat Criticizes Supreme Court Free Speech Ruling

Fortunately, it's none of his business, but it is a sad and twisted commentary on the international human rights situation when one of its top spokesman speaks out against free speech.

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Posted by Amy Ridenour at 5:39 PM

Alan Grayson Inadvertently Reminds Us of the Limits of Stare Decisis on Roe Anniversary

Portrait of Dred ScottDred Scott

Some members of the Project 21 black leadership group were offended by Rep. Alan Grayson's comments comparing yesterday's Supreme Court decision in Citizens United v. FEC to the Dred Scott case, believing Grayson's comparison tends to trivialize Dred Scott. In Dred Scott the Supreme Court, after all, "decided" that black Americans who were, had been, or were descended from slaves could not be U.S. citizens (among other noxious things).

It is breathtaking that a majority of the Supreme Court could take away the citizenship of a huge group of people just like that.

The fact that the Dred Scott decision could ever take place certainly reminds us of the limits of stare decisis, something worth remembering on this anniversary of the infamous Roe v. Wade decision.

The Project 21 press release can be read here.

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Posted by Amy Ridenour at 11:17 AM

Monday, January 11, 2010

In Newsweek, Ted Olson Is Wrong on Gay Marriage

NewsweekCoverTedOlsonGayMarriage.jpgFormer Solictor General Ted Olson's Newsweek essay, "A Conservative Case for Gay Marriage," is embarrassing for conservatives -- that is, embarrassing that we had a Solicitor General so willing to publicly use straw-man arguments.

Of course, as it has ever been, when an individual conservative of moderate fame wants some nice press in the mainstream media, he offers up a 'man bites dog' story, to wit, "Neanderthal Conservative Sees the Light [Insert Topic Here]."

Which is not to say a desire for fame is Olson's motivation, particularly; his essay is ardent enough to signal his logic has been overwhelmed and thus it is likely he is sincere, but how many of us, pushed out on a limb of illogic after letting our emotions rule, are rewarded with an essay in Newsweek?

(I daresay even a fashionable liberal, penning "A Liberal Case Against Gay Marriage," couldn't get one.)

Olson lists the "reasons I have heard" against legalizing gay marriage.

He's not a listener.

Every adult American already has the same legal right to marry as anyone else. There are certain limitations on this right for everybody -- you can't marry a close relative, you can't marry if you are not mentally competent to enter into a contract, you can't marry if you are already married, you can't marry someone else who is already married, you can't marry someone who does not wish to marry you, you can only be married to one person at a time, and, yes, you have to marry a person of the opposite sex. The core point here, and the relevant one for any discussion of the applicability of the Equal Protection Clause, is: these rules apply to everyone equally.

Don't like the rules? Fine, don't get married. There is also a legal right to refrain from marriage if it is not your cup of tea.

If Ted Olson wants to change the laws regarding marriage, and lobby forthwith for same, that, too, is his legal right, as it is everyone's. But his view that defining marriage under law for everyone equally as the union of one man and one woman is unconstitutional is simply wrong, and if his view prevails -- this is a certainty -- it won't be long before we have a lawsuit by people who say they can't be happy unless they have more than one spouse at a time. The public will laugh at first, but these individuals will organize, hire lobbyists, obtain a headquarters, and spend 20 years saying they've felt this way as long as they can remember. Then the next generation Ted Olson will be trotted out with "A Conservative Case for Polygamy" (though no doubt a new and highly-marketable name will first be made de rigueur). Tomorrow's Ted will argue that the Equal Protection Clause applies and that the Constitutional case is closely analogous to the one against slavery. He'll toss out religious arguments as unworthy of examination, and fret that the real basis of opposition to polygamy is that people feel "threatened." (Subtext: Opponents are "polygaphobic"; that is, they have a mental illness.)

And if that Ted's view prevails, the institution of marriage, already under threat by all-too-many people who don't take it seriously, will for practical purposes, in the United States of America, be no more.

(Cross-posted on Newsbusters, where you can leave comments if you like.)

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Posted by Amy Ridenour at 10:24 PM

Thursday, December 10, 2009

Everyone Must Buy a Chevy Malibu

I heard a very good point from radio host Sean Casey on WCBN radio (Baltimore) today on the question of the constitutionality of the health care insurance mandate.

He asked (paraphrase), "would it be constitutional if the federal government said we all had to buy a new Chevy Malibu every year?"

I think that's the fastest explanation of the idiocy of the individual mandate I have heard yet.

One can, after all, build a solid case for mandating frequent purchases of Chevy Malibus: the taxpayers are invested in General Motors and would like their money back; new engines burn cleaner than old engines so it would be (on one level) good for the environment; people in Michigan and elsewhere need jobs and car manufacturing and selling creates them; old Chevy Malibus could be given to the poor, etc.

There are many good reasons to mandate annual purchases of Chevy Malibus, but that wouldn't make a federal requirement that we must do so constitutional, and an individual mandate that we must buy health insurance isn't constitutional, either.

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Posted by Amy Ridenour at 10:25 PM

Sunday, November 22, 2009

David Beamer Op-Ed Recommended

For those who have not already done so, I strongly recommend the Wall Street Journal op-ed of November 20 by David Beamer (father of Flight 93 hero Todd Beamer) on Attorney General Eric Holder's decision to try the -- I suppose I am supposed to say "alleged" -- 9/11 terrorists as if they were domestic criminals.

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Posted by Amy Ridenour at 2:58 PM

Monday, November 02, 2009

So Much for That

I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

-Presidential oath of office

When asked if there "is any concern at all about whether it is constitutional for Congress to impose a mandate [that individual Americans must obtain health insurance]," White House spokesman Robert Gibbs said, "no." He also said he had no reason to believe White House lawyers had ever considered the issue.

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Posted by Amy Ridenour at 5:58 PM

Thursday, October 15, 2009

The Nobel Committee's Not-So Unanimous Selection of Obama

OSLO, NORWAY - DECEMBER 10:  A plaque depictin...Image by Getty Images via Daylife

The Agence France Presse today reports that three of the Nobel Committee's five committee members had problems with awarding the Nobel Peace Prize to Barack Obama.

Nobel Committee Secretary Geir Lundestad, however, insists that the selection was unanimous.

This is doubtful, given that one of the members represents the free-market-oriented, unabashedly pro-Israel Progress Party. The party's leader, Siv Jensen, not only criticized the Nobel Committee's choice of Obama but called on its chairman, Thorbjoern Jaglund, to step down just one day after the committee's announcement. Although Jensen called for his resignation for a supposedly unrelated reason, the timing of her demand is interesting.

Lundestad wasn't being honest when he claimed "unanimous" vote as he neglected to mention that the Nobel Committee's selections are always "unanimous" -- even if such unanimity doesn't exist.

The Nobel Committee makes its decisions by "consensus" and the functionally-illiterate often use this interchangeably with "unanimous." Now you know why so many Norwegian parents are asking, "why can't Jens read?"

Just to make sure that no committee member challenges its "unanimous" claim, Nobel Committee rules prohibit them from speaking publicly about its proceedings.

Unanimous decision? It really depends on what your definition of "unamious" is.

Bill Clinton may not have received the Nobel Peace Prize, but it turns out the Nobel Committee has found another way to honor him.

Editor's note: We covered President Obama's Nobel Peace Prize previously here, here and here.

Written by David A. Ridenour, vice president of the National Center for Public Policy Research. Write the author at [email protected]. As we occasionally reprint letters on the blog, please note if you prefer that your correspondence be kept private, or only published anonymously.

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Posted by David A. Ridenour at 4:48 PM

Wednesday, October 14, 2009

On Nobel Funds, Talking Points Memo Misses the More Interesting Story

RobertGibbs1009.jpgChristina Bellantoni of Talking Points Memo reported Tuesday afternoon that as of then, according to Robert Gibbs, President Obama was still planning to donate the cash prize accompanying the Nobel Peace Prize to charity.

Because Obama is President of the United States, it is unconstitutional for him to accept the money (which includes taking control of it long enough to direct that it be re-routed to a charity) unless Congress specifically gives him permission to do so.

As explained here, this is governed by Article 1, Section 9 of the Constitution.

Perhaps Talking Points Memo either doesn't realize the Nobel Committee is appointed by a foreign government, or it doesn't have a problem with foreign governments bestowing cash gifts on U.S. presidents (surely not), but either way, it missed a better story when it failed to ask Gibbs why the White House seems to be ignoring the Constitution on this.

Written by Amy Ridenour. E-mail comments to [email protected]. | Subscribe to this blog's feed. | Follow the National Center for Public Policy Research on Twitter. | Download our book Shattered Lives: 100 Victims of Government Health Care.

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Posted by Amy Ridenour at 12:18 AM

Tuesday, September 15, 2009

Reality Check

"Brevity is the soul of wit." It is also a purveyor of wisdom.

The original U.S. Constitution was 6 pages long, contained 4,400 words, and set the foundation for the freest, most prosperous nation in the world. Last week, Barack Obama spoke of his plans for a health care bill expected to exceed 1,000 pages.

Further compounding this departure from the beautiful simplicity of America's founding is the present day propensity to complicate legislative language. The Founders were careful to produce a document that all Americans could easily understand. The hotly debated health care legislation is too complicated apparently for even legislators to understand. As that staggering intellect, House Judiciary Chairman John Conyers (D-MI), said, "I love these members, they get up and say, 'Read the bill,' What good is reading the bill if it's a thousand pages and you don't have two days and two lawyers to find out what it means after you read the bill?"

My, how far we have come... but not for the better, I fear.

I comment on this abandonment of the ways of the past as it emphasizes a concern held by many: that this loss of legislative simplicity implies a complimentary loss of freedom. The eight year anniversary of the September 11 attacks is also a time to celebrate the liberty we, as Americans, have protected and maintained these many years. Though liberal activists have worked to marginalize the patriotic fervor of this most tragic anniversary, the majority of Americans not only remember those who were murdered, they also consider with reverence the strength and sustainability of America and her freedoms (so hated by our terrorist attackers). As we reflect on our liberty as Americans we should also remember the lurking legislative threats to our sacred freedoms, as signified by this rejection of simplicity.

This post was written by Caroline May, policy analyst the National Center for Public Policy Research. Write the author at [email protected]. As we occasionally reprint letters on the blog, please note if you prefer that your correspondence be kept private, or only published anonymously.

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Posted by Caroline May at 11:15 PM

Wednesday, September 09, 2009

Possibly It Can Be Found in the Kiddie Sex Section of the Constitution?

Where do you suppose the federal government found the authority for it to do this in the Constitution?

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Posted by Amy Ridenour at 6:11 PM

Friday, August 21, 2009

What's Happening Now

Is national health insurance Constitutional? No. Not convinced yet? Go here then.

"It's almost as if the president has no experience..." Ya think?

What planet is this guy on?

Independence Institute: Medical coverage is like a game show. (90 sec. video)

Write about the Fifth Amendment, get sued.

Death panels are real.

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Posted by Amy Ridenour at 3:46 PM

Thursday, July 23, 2009

What's Happening Now

A secret meeting. Others are not-so-secret anymore.

Opposed to government-run health care? Join the bus tour.

We need a special prosecutor.

Surprise! A letter to the Senate (pdf) on Sotomayor.

The House Democrats' health care bill and illegal aliens.

Bill Cosby is shocked at Barack Obama.

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Posted by Amy Ridenour at 4:32 PM

Thursday, July 16, 2009

Project 21's Borelli to Speak About Sotomayor Confirmation Hearing on Fox News Channel Monday

DBStrategyRoom021309.jpgProject 21 Fellow Deneen Borelli is scheduled to appear on the Fox News Channel's online "Strategy Room" program on Monday, July 20 between 9:00 AM and 10:00 AM eastern.

Deneen expects to discuss the judicial confirmation hearings for Sonia Sotomayor. Deneen wrote about the nomination, and Sotomayor's opinion on racial preferences, in a recent New Visions Commentary from Project 21.

In the commentary "Special Treatment and Sotomayor," Deneen wrote:
After all of the significant strides that have been made for equal opportunity over the years, one would think that winners and losers today would no longer be decided based on skin color...

...But America changed.

From the White House to the worlds of sports, entertainment and corporate America, most blacks have moved on and are taking advantage of opportunities and leading successful, productive lives...

...Fortunately, the Court's ruling on the Ricci case won't allow the clock to continually be turned backward. But based on comments made by the nominee, Sonya Sotomayor could reinvigorate racial preferences.

This disturbing possibility puts change at a crossroads.

In light of the Court's ruling in the Ricci case, Sotomayor's opinions should be closely scrutinized to determine her judicial philosophy.
To access the live Internet broadcast, click here and then click the "STREAM THIS NOW" headline in the center or the page under the photo.

This post was written by David Almasi, executive director of the National Center for Public Policy Research. Write the author at [email protected]. As we occasionally reprint letters on the blog, please note if you prefer that your correspondence be kept private, or only published anonymously.

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Posted by David W. Almasi at 11:30 AM

Tuesday, July 14, 2009

Did Sonia Sotomayor Lie Today?

John Hinderaker thinks she may have.

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Posted by Amy Ridenour at 5:34 PM

Monday, July 13, 2009

Honduras Situation Not a Coup

Miguel A. Estrada, a native of Honduras and a man far more qualified for the U.S. Supreme Court than the lady whose confirmation for it starts today, explains why what happened in Honduras is not a coup.

Hat tip: Jonathan Adler on The Volokh Conspiracy.

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Posted by Amy Ridenour at 12:09 AM

Monday, June 29, 2009

Black Activists Praise Supreme Court

Project 21 has issued a press release on the Supreme Court's affirmative action decision today:
Black Activists Praise Supreme Court's Affirmative Action Decision

Justices' Ruling Throws Sotomayor Nomination into Serious Question

For Release: June 29, 2009
Contact: David Almasi at (202) 507-6398 x11 or [email protected]

With the U.S. Supreme Court dealing a stinging blow to race-based employment practices, members of the Project 21 black leadership network are praising the Ricci v. DeStefano decision as a step toward removing the racial trappings of a by-gone era and putting all Americans on equal footing.

"It was clear to this Court that barring people from promotion because of the color of their skin is wrong. The only downside is that four justices still cling to an outmoded and discriminatory line of thought," said Project 21 chairman Mychal Massie. "True equality allows people to rise and fall on their merits. That's what this decision protects. How can one oppose such fairness?"

In a 5-4 decision, the Court reversed the lower court ruling, barring the use of race as the sole factor in promotions. In his majority opinion, Justice Anthony Kennedy wrote, "Fear of litigation alone cannot justify the City's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions."

The decision also casts serious doubt on the Supreme Court nomination of Sonia Sotomayor. She was a member of the appeals court panel that issued the one-paragraph opinion overturned today. Now, she must explain to senators how she could be so much at odds with her potential future colleagues.

"Justice is supposed to be blind, but the opinion she joined in the Ricci case - now overturned by the Supreme Court - shows Sonia Sotomayor believes justice should be based on ethnicity," added Project 21's Massie. "Her ruling in Ricci is an unambiguous example of her placing her feelings and personal prejudices above what the law dictates or allows."

The Ricci case revolves around a 2003 promotions exam given to firefighters in New Haven, Connecticut. After the tests were scored, only two Hispanics and no blacks scored high enough to qualify for promotion. After black and Hispanic activists pushed to have the test results thrown out, the city's Civil Service Commission effectively did so by deadlocking 2-2 on the decision to certify the exam.

After the results of the exam were set aside by the city, 20 New Haven firefighters - one Hispanic and 19 white - sued based on the claim of reverse discrimination. The city was granted summary judgment at the district court level, and a panel of judges that included current U.S. Supreme Court nominee Sonia Sotomayor sided with the lower court in a eight-sentence opinion that called the previous opinion allowing the city to throw out the test scores based on race "thorough, thoughtful and well-reasoned."

In a concurring opinion, Justice Antonin Scalia wrote of the question of empathy for those passed over: "But 'sympathy' is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law... And that is what, until today's decision, has been denied them."
The release is online here.

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Posted by Amy Ridenour at 1:15 PM

Tuesday, June 23, 2009

Project 21 Critical of Voting Rights Decision; Slavery Apology

Project 21 isn't particularly thrilled by either the U.S. Supreme Court or the U.S. Senate just now.

In this press release, Project 21 Chairman Mychal Massie criticizes the Court for side-stepping the issue of the constitutionality of the Voting Rights Act despite noting "serious Constitutional concerns" with the law in the decision in Northwest Austin Municipal Utility District Number One v. Holder.

Project 21 had joined in an amicus brief on the Voting Rights Act case with the Pacific Legal Foundation and Center for Equal Opportunity.

When it comes to the Senate, Project 21 members Jerry Brooks, Jimmie L. Hollis and Bob Parks are concerned about the Senate's recent apology for slavery and segregation, fearing the apology will be used to advance the call for financial reparations for slavery.

As Jerry Brooks put it:
I'll accept the Senate's apology, but let's move on already. This apology is something that might have been more appropriate long ago, and now it's likely going to be misused by those with a political axe to grind. In particular and despite its intention to the contrary, it is already being used to promote reparations. Not only is this an idea without merit, but an extremely foolish one to be clinging to while our nation is trying to recover from its current economic distress.

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Posted by Amy Ridenour at 7:09 AM

Sunday, June 14, 2009

Clean Water Restoration Act Information Webpage Created

The National Center for Public Policy Research has created a webpage with links to resources about the Clean Water Restoration Act.

The page has links to resources about CWRA published not only by the National Center, but by a variety of other organizations as well. If you are a columnist, blogger, speaker or talk show host planning to address the issue, you will find plenty of useful information on the page.

As National Center Senior Fellow R.J. Smith noted below, the legislation is scheduled for a markup and vote in the U.S. Senate's Environment and Public Works Committee on June 18.

You can visit the page here.

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Posted by Amy Ridenour at 1:05 AM

Friday, June 05, 2009

BeldarBlog: POTUS as the Great Defender of the Faith

Beldar said it well:
Has [President Obama] actually read his present job description, or the rest of the Constitution and its amendments?
If he thinks fighting "against negative sterotypes of Islam wherever they appear" is what a U.S. President is elected to do, I think a few of his countrymen might differ. (That is, his countrymen here in the good old USA, not the ones in whatever country he was talking about that has one of the largest Muslim populations in the world.)

Funny, the left always seems to be claiming or at least acting like "separation of church and state" is in the Constitution, and now this.

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Posted by Amy Ridenour at 11:30 AM

Wednesday, June 03, 2009

On Sotomayor, Rumors of Conservative Hypocrisy are Overblown

ScienceBlogs, which, despite the neutral and academic-sounding name, apparently is a left-wing political blog, has a curious attack on "the Right" today on the nomination of Sonia Sotomayor. Since husband David and I are in it, mildly, and post author Ed Brayton appears to have a glaring blind spot that causes him to unfairly malign several of my fellow conservatives, I thought I'd take a minute to set the record straight.

Brayton claims there is "glaring hypocrisy" of which some conservatives are guilty. Specifically, Brayton charges, in 2005 (Brayton actually wrote "1995") quite a few conservatives signed a letter to Republican Senators opposing the use of the filibuster to obstruct up-or-down 50-percent-plus-one votes on judicial nominees. The hypocrisy comes in, Brayton charges, because some of those same conservatives also signed a letter dated June 2, 2009 calling on Republican Senators to consider using a filibuster to, if needed, make sure the Senate debate on Sotomayor is "appropriately long."

Brayton misses, either intentionally or because he did not understand one or both of the letters, the important common position in each letter: Opposition to the use of the filibuster to obstruct a straightforward up-or-down 50-percent-plus-one vote.

The 2009 letter spells out very clearly that the letter's signers are not trying to obstruct a majority vote on Sotomayor, but merely make certain a meaningful debate on the nomination occurs. Paragraphs are devoted to the explanation, as well as very clear phrases, such as "the traditional filibuster, not intended to obstruct [a vote]."

It seems so clear to me, I don't see how Brayton could have misunderstood it.

P.S. The Other McCain rebuts another ridiculous criticism of the June 2 letter. Really, why do certain people feel so threatened by a call for a mere debate?

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Posted by Amy Ridenour at 11:25 PM

Quote of Note: Obama on the Need for Justices to Have "Empathy"

"...while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases -- what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.

"In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled -- in those difficult cases, the critical ingredient is supplied by what is in the judge's heart."

-Barack Obama, Senate Floor Speech on the Confirmation of Judge John Roberts, September 2005

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Posted by Amy Ridenour at 6:16 AM

Quote of Note: Obama on the Senate's Advise and Consent Role

"As we all know, there's been a lot of discussion in the country about how the Senate should approach this confirmation process. There are some who believe that the President, having won the election, should have the complete authority to appoint his nominee, and the Senate should only examine whether or not the Justice is intellectually capable and an all-around nice guy. That once you get beyond intellect and personal character, there should be no further question whether the judge should be confirmed.

"I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge's philosophy, ideology, and record..."

-Barack Obama, Floor Statement on the Confirmation of Judge Samuel Alito, Jr., January 26, 2006

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Posted by Amy Ridenour at 12:02 AM

Wednesday, May 27, 2009

Black Leader Says Sotomayor Nomination Perfect Catalyst for Debate About Judicial Activism

Project 21's Mychal Massie has thoughts on the Sonia Sotomayor Supreme Court nomination.

Among other things, he says the Sotomayor nomination is the perfect catalyst to begin a national debate on the appropriateness of "judicial activism," when judges essentially cut lawmakers out of the legislative process and try to rule from the bench.

More here.

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Posted by Amy Ridenour at 2:12 PM

Sunday, April 26, 2009

Randy Barnett's Constitutional Convention Proposal

Randy E. Barnett makes a surprisingly compelling argument for organizing states into calling for a Constitutional convention.

I'm not saying I'm ready to endorse his proposal, but there's food for thought there.

Hat tip: Alamo City Pundit.

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Posted by Amy Ridenour at 7:04 AM

Wednesday, March 25, 2009

Diverse Coalition Appeals to Congress Regarding Unjust Provisions of Omnibus Land Management Act

Readers with an interest in property rights, civil rights or simply staying out of jail for doing something one has no idea is illegal will want to review the coalition letter sent to the Congressional leadership, the Attorney General and to President Barack Obama by the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, the Competitive Enterprise Institute, the Association of Applied Paleontological Sciences and the National Center for Public Policy Research during the last 24 hours.

The letter was organized by John Berlau of the Competitive Enterprise Institute.
Dear Speaker Pelosi and Minority Leader Boehner,

Our respective organizations have diverse viewpoints, but we share a deep and abiding belief in due process under the law. We believe that that Congress should perform careful diligence before adding violations to the criminal codes, that federal crimes should be narrowly defined and show clear criminal intent, and that the use of asset forfeiture must be narrowly tailored so that it does not unduly punish the accused before a trial has proven their guilt. As such we have grave concerns about sections of the pending Omnibus Land Management Act of 2009, which passed the Senate last week as H.R. 146, regarding "paleontological resources preservation."

These sections, now contained in the bill under Subtitle Dof Title VI, seek to empower the Departments of Agriculture and the Interior to"protect paleontological resources on Federal land using scientific principles and expertise." We understand that preventing theft of and harm to important fossils on federal land is a serious objective. However, we are concerned that the bill creates many new federal crimes using language that is so broad that the provisions could cover innocent human error. There is also, in defining the crimes, a troubling lack of words such as "knowingly" that clearly establish criminal intent as a prerequisite for prosecution. As Georgetown University legal ethicist John Hasnas has written, to serve the greater goal of justice, all criminal laws must require the government to establish that "one had to knowingly or at least recklessly act in a morally blameworthy way to be subject of criminal punishment."

H.R. 146 would make it illegal to excavate, remove, damage, or otherwise alter or deface or attempt to excavate, remove, damage, or otherwise alter or deface any paleontological resources located on Federal land" without special permission from the government. Penalties for violations include up to five years imprisonment. "Paleontological resources" are loosely defined as all "fossilized remains ... that are of paleontological interest and that provide information about the history of life on earth." We are troubled by this definition that paleontological organizations say could cover many common rocks that adults and children collect. The Association of Applied Paleontological Sciences has warned that with this wording, it is easy to visualize "a group of students unknowingly crossing over an invisible line."

We are also concerned about the bill's prohibition against "false labeling" of fossil specimens, an offense that also carries criminal penalties. The bill makes it a crime to "make or submit any false record, account or label for, or any false identification of, any paleontological resource excavated or removed from federal land." This broad language could criminalize innocent misidentifications, limit scientific inquiry, and infringe on the First Amendment's protection of freedom of speech. Fossil labeling is a complex process, and even the top museums of the world have been known to revise labeling in their exhibits upon scholarly review or new facts being discovered ..Thus, the fear of making an honest mistake in fossil labeling or even having fossil identifications proven "false" in light of new scientific discoveries could have a chilling effect on new research in paleontology.

We are pleased that the Senate recently improved provisions regarding forfeiture. Language in earlier versions of the legislation would have allowed government officials to engage in the pretrial seizure of "all vehicles and equipment of any person" accused of theft or harm to a "paleontological resource." Forfeiting a person's property without a conviction undermines the bedrock principle of our legal system: that a person is innocent until proven guilty. Past abuses of forfeiture led to bipartisan passage of the Civil Asset Forfeiture Reform Act of 2000, and we had feared that these provisions would go against the spirit of these reforms. The Senate heeded our concerns with an amendment, and as passed on March 20, "vehicles and equipment" were removed from the forfeiture language, so that the forfeiture provisions apply only to the "paleontological resources" taken from federal land. This is a marked improvement, and we would oppose any attempts to reinsert forfeiture of personal property in a revised bill.

Above all, we are concerned that a bill containing new federal crimes, fines and imprisonment, and forfeiture provisions may come to the House floor without first being marked up in the House Judiciary Committee. That committee is tasked with providing centralized oversight of criminal legislation, thereby enhancing the fairness and consistency of those enactments. As such we strongly urge that the criminal provisions of the Omnibus Public Land Management Act be stripped from any final legislation until they are subject to Judiciary Committee review and amendment."

Representatives of the signatory organizations of this letter would be happy to meet with you or members of your staff to address these concerns.


Caroline Fredrickson
American Civil Liberties Union
Washington Legislative Office

Tracie Bennitt
Association of Applied Paleontological Sciences

John Berlau
Director, Center for Investors and Entrepreneurs
Competitive Enterprise Institute

Kyle O'Dowd
Assoc. Executive Director for Policy
National Association of Criminal Defense Lawyers

David A. Ridenour
Vice President
The National Center for Public Policy Research

Cc: House Majority Leader Steny Hoyer
House Majority Whip James Clyburn
House Minority Whip Eric Cantor
House Judiciary Committee Chairman John Conyers
House Judiciary Committee Ranking Member Lamar Smith
President Barack Obama
Attorney General Eric Holder
For more information on this issue, see this blog's previous coverage of this here and here.

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Posted by Amy Ridenour at 2:40 PM

Saturday, March 21, 2009

New Tax Betrays the Founders, Borelli Charges

Project 21's Deneen Borelli says it's not just the issue of the ban on bills of attainder that make Congress' anti-AIG tax constitutionally suspect.

It's also unconstitutional to interfere this way in contracts:
Legislation to specifically target AIG employees with a 90 percent tax on retention bonuses directly conflicts with the founding principles of the United States, Project 21 Fellow Deneen Borelli charged today on the Fox News program "Strategy Room."

Saying Article I, Section 10 of the U.S. Constitution prohibits the government from passing laws "impairing the obligation of contracts," Borelli says the AIG bonus controversy is a creation of the lawmakers who rushed bailout legislation earlier this year without due consideration.  These are the same lawmakers who now seek to hide their mistakes by pushing this new and selective tax.

"Politicians need to be reminded that we are a nation of laws.  To impose a hastily-concocted tax as a means of rectifying a problem that the government itself created and mismanaged calls their ability to lead into question," says Borelli.  "To suddenly enact a new tax to punish a few dozen people for something that was legal at the time is ludicrous, and it smacks of the British treatment of the colonists that provoked the revolt that created the United States.  Have we come full circle already?"
Read the rest here.

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Posted by Amy Ridenour at 7:25 AM

Tuesday, March 10, 2009

Project 21 Hails Supreme Court Decision Against Racial Gerrymandering

Project 21 issued a press release Monday evening on the new Supreme Court decision:
Supreme Court Decision Against Racial Gerrymandering Hailed

For Release: Immediate
Contact: David Almasi at (202) 507-6398 x11 or
[email protected]

Washington, D.C.: Project 21 Chairman Mychal Massie today hailed a new U.S. Supreme Court decision prohibiting the use of the Voting Rights Act to supercede other laws to create predominantly black voting districts, saying the decision is a new protection against the abuse of civil rights laws for potential partisan gain.

"It continues to confound me that those whose party is responsible for preventing blacks from voting until 1964 now want to illegally redefine voting districts because it serves their best interest," said Massie. "It should go without saying that creating special black voting districts - for partisan gain or otherwise - is against the spirit of civil rights."

In the case of Bartlett v. Strickland, a 5-4 decision by the Court struck down the redistricting of District 18 in North Carolina. The prevailing concern among lawmakers involved in the redistricting process after the last census was adherence to Section 2 of the Voting Rights Act. This requires the political process to be "open equally" to minority voters. In doing so, a state law prohibiting the division of counties to create voting districts was violated to raise the percentage of blacks of voting age in the new District 18 from 35 percent to over 39 percent. One of the affected counties challenged the North Carolina General Assembly's process.

This decision is important because it can prevent the political manipulation of voting district boundaries based on race. In his majority opinion, Associate Justice Anthony Kennedy wrote: "Section 2 does not guarantee minority voters an electoral advantage."

District 18, as previously drawn, gave Democrats a 59 percent to 41 percent electoral advantage among registered voters. Senate Judiciary Committee Chairman Patrick Leahy (D-VT), however, criticized the decision as a "cramped reading" of the Voting Rights Act and a "serious blow" to civil rights.

"The only cramped reading is on the part of Leahy and his ilk. Even if his rhetoric is spoken without intended malice, his comments aid the nefarious work of partisans who seek to preserve ill-gotten political gains under the guise of promoting civil rights," added Project 21's Massie. "It's amazing the things that liberals can say with a straight face."

Project 21 is a black leadership network dedicated to promoting free-market ideals and the diversity of opinion among black Americans.

Project 21, a nonprofit and nonpartisan organization, has been a leading voice of the African-American community since 1992. For more information, contact David Almasi at (202) 507-6398 x11 or [email protected], or visit Project 21's website at



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Posted by Amy Ridenour at 12:05 AM

Tuesday, August 26, 2008

Ron Bailey on CWRA

Ron Bailey of Reason magazine takes a look at Congress' flawed Clean Water Restoration Act, quoting from this National Center paper by Peyton Knight.

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Posted by Amy Ridenour at 10:45 AM

Wednesday, July 09, 2008

Congress Investigates EPA for Following the Rules on Clean Water Act Enforcement

Nick Loris has it right in this Foundry post.

Do Representatives Henry Waxman (D-CA) and James Oberstar (D-MN) really want the EPA to ignore a Supreme Court decision?

I believe acting outside of proper channels is the kind of thing that could get EPA administrators hauled before Waxman's committee.

Oops. They have been.

Next time, EPA, don't stick to the rules.

Congress is watching.

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Posted by Amy Ridenour at 6:17 AM

Friday, July 04, 2008

Washington Post & Other Papers Lose 27th Amendment to the Constitution

Nearly two years ago on Newsbusters, I floated a proposal that newspapers require their editorial and other writers to police themselves for accuracy by requiring them to turn in footnotes with their copy. The process would force writers to check information they think they know that isn't so.

Had editors at the Washington Post, Hartford Courant, Sacramento Bee and Raleigh News & Observer taken my advice, they could have prevented a howler of an error from appearing on their opinion pages this week, in which a writer and fact-checking editors at all four papers apparently forgot the existence of the 27th Amendment to the U.S. Constitution.

In an op-ed titled (in the Washington Post version) "Three Cheers for July 2," writer Andrew Trees writes:
The Bill of Rights as we know it also is not what was initially proposed. The original first two amendments, one of which concerned the number of constituents each member of Congress had and one regarding congressmen's salaries, were never ratified by the states. [Emphasis added] What we think of today as our First Amendment freedoms were actually third on the list.
Mr. Trees and his editors apparently have never heard of the 27th Amendment, proposed by Congress on September 25, 1789 as the second of Congress's first twelve proposed amendments, and ratified 202 years later, on May 7, 1992, when Michigan became the 38th state to ratify it.

The amendment, for those who may be curious, states:
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.
The Washington Post has an extra helping of egg on its face, as it covered the lead up to, adoption, and text of "the first Second Amendment" on February 1, 1987; July 28, 1991; May 14, 1992; May 17, 1992; May 19, 1992; September 12, 1999; January 1, 2001 and April 6, 2008. Had Mr. Trees been required by the Post to footnote his piece before submitting it, he might very well have found it was a Post story that set the record straight for him.

I realize writers don't like bothering with footnotes, but -- as I showed in my original post on this topic in Newsbusters when I noted major errors in a Margaret Carlson column that would easily have been caught by a footnoting process -- accuracy would be improved by requiring them.

(A footnote of my own: I noticed when researching this post that when the first Second Amendment was ratified on May 7, 1992, both the Washington Post and New York Times turned to law professor Walter E. Dellinger III for expert opinion. On May 8, 1992 Richard L. Berke of the Times quoted Mr. Dellinger saying the first second amendment would not automatically take effect, because it had "simply withered and died" after it "failed to be ratified long ago." Ten days later, U.S. Archivist Don W. Wilson formally certified the amendment. Mr. Dellinger is something of an expert on the second Second Amendment, too: He argued for the District of Columbia in the just-decided District of Columbia v. Heller gun-rights case, telling the court in oral arguments that "the Second Amendment... is expressly about the security of the State..." No luck that time, either. His client lost.)

Cross-posted at NewsBusters.

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Posted by Amy Ridenour at 1:09 AM

Thursday, June 26, 2008

Horace Cooper on Ruling Against the D.C. Gun Ban - Listen Live

From David Almasi:
Project 21 member Horace Cooper, a former constitutional law professor at George Mason University in Arlington, Virginia, will discuss the U.S. Supreme Court's Thursday ruling overturning the Washington, D.C. ban on handgun ownership live with Scott Sloan on WLW in Cincinnati on Friday, June 27 at 10:00 am eastern.

You can listen live over the Internet.

To listen, click here and look for the listen live tab at the top left of the page under the station logo.
To contact author David Almasi directly,
write him at [email protected]


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Posted by Amy Ridenour at 7:28 PM

Court Continues Welcome Trend of Reigning in Excessive Punitive Awards

From Research Associate Justin Danhof comes this look at the decision in Exxon Shipping Co. v. Baker, handed down June 25:
In 1989, the Exxon Valdez supertanker grounded on a reef off Alaska's coast, spilling millions of gallons of oil. Since that time, Exxon has spent $2.1 billion in clean-up efforts, $900 million to settle a civil lawsuit and $303 million in voluntary payments to private parties.

Today, the U.S. Supreme Court ruled, in the case of Exxon Shipping Co. v. Baker, that that is enough... almost.

The Supreme Court did rule that punitive damages are allowed under maritime law. In a 5-3 decision, however, the majority directed the lower court to reduce the punitive award from $2.5 billion to no more than $507.5 million.

The Court took a commonsense approach by aligning punitive damages with compensatory damages. Associate Justice David Souter, writing for the majority, rejected a hard cap for punitive damages and instead affixed the maximum punitive award to the compensatory award: a one-to-one ratio. Although these studies were not dispositive, the Court cited empirical studies showing that a one-to-one ratio is consistent with America's average punitive award.

The decision was made under maritime common law, not the due process clause under which most punitive challenges are brought. Justice Souter explained:
[t]oday's enquiry differs from due process review because the case arises under federal maritime jurisdiction, and we are reviewing a jury award for conformity with maritime law rather than the outer limit allowed by due process.
Although the decision did not set direct precedent for future constitutional claims, it offered guidance to lower courts and was instructive of the Court's position towards punitive awards generally.

The Court was mindful that punitive awards are often criticized for their unpredictability. This unpredictability runs counter to a main goal of punitive awards: to provide an example. The Court explained that,
...a penalty should be reasonably predictable in its severity so that even Justice Holmes's 'bad man' can look ahead with some ability to know what the stakes are when choosing one course of action or another.
This decision goes a long way towards achieving this goal.

The Court's decision continues a welcome trend of the court reigning in excessive punitive awards. In State Farm v. Campbell (2003), the Court held that a single-digit maximum (i.e., no greater than a nine-to-one punitive to compensatory ratio) is appropriate in all but the most exceptional cases. Indeed, the Exxon decision follows State Farm's guidance which suggested that,
[w]hen compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee.
Justice Souter's majority opinion was joined by Justices Kennedy, Scalia, Thomas and Chief Justice Roberts. Justices Breyer, Ginsberg and Stevens dissented, arguing that the Court went too far in limiting punitive awards. Justice Alito, a holder of Exxon stock, took no part in the decision.

Excessive punitive awards are a scourge on the business community; reducing innovation, investment and economic growth. Today's decision sends an appropriate message that companies will be held accountable for their mistakes, but not bankrupt by untenable punitive award figures.

To contact author Justin Danhof directly,
write him at [email protected]


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Posted by Amy Ridenour at 7:14 PM

Black Group on Gun Decision: A Great Day for Law-Abiding Citizens

The Project 21 black conservative leadership group  comments on the Supreme Court's gun rights decision:
District of Columbia v. Heller Supreme Court Second Amendment Decision Hailed by Black Activists

For Release: June 24, 2008
Contact: David Almasi at (202) 507-6398 x11 or [email protected]

Today's U.S. Supreme Court ruling guaranteeing the Constitution's individual right to own firearms and overturning the ban on most gun ownership in the nation's capital in the first major Second Amendment case in almost 70 years is being hailed by black activists of the Project 21 leadership network.
Project 21 Fellow Deneen Borelli says the decision supporting an individual right to use firearms is a loud and clear declaration that the government cannot pick and choose what constitutional protections are honored and enforced.

"This is a great day for law-abiding citizens of the nation's capital who have unjustly been denied their full right to protect themselves and families for over 30 years," said Borelli. "The Second Amendment guarantees the individual right of citizens to arm themselves for self-defense and not become easy prey. Perhaps the government should find a better way to keep illegal guns away from criminals and not law-abiding citizens."

The case of District of Columbia v. Heller is an appeal of the decision of the U.S. Court of Appeals for the DC Circuit in Parker v. District of Columbia. In Parker v. District of Columbia, the DC Circuit ruled the District of Columbia's Firearms Control Regulations Act of 1975, which bars handgun ownership by most D.C. residents, is unconstitutional.

The specific question being answered in District of Columbia v. Heller today was, as phrased by the Court: "Whether... provisions [in the District of Columbia code] violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes."

The District of Columbia, defending the constitutionality of the firearm ban before the Court in oral arguments March 18, argued the Second Amendment's right to "bear arms" refers not to an individual right to use firearms, but rather to a "right to participate in the common defense" and a restriction of "the authority of the federal government to interfere with the arming" of state militias. The District of Columbia argued to the Court that "the Second Amendment... is expressly about the security of the State; it's about well-regulated militias, not unregulated individual license."

Opponents of the ban, however, said the Founders considered self-defense a right and one they intended the Second Amendment to protect, telling the Court "the framers knew exactly how to condition a right on militia service... and they didn't do it with respect to the Second Amendment."

"There are countless instances in which individuals are on their own when it comes to protecting themselves and their property. A majority of the Justices recognized this and upheld the Second Amendment's specific protection of an individual right to self-defense. Now that D.C.'s citizens have had this constitutional right restored, criminals will have good reason to think twice before trying to plunder another's property," added Project 21's Borelli.

In 2007, in a newspaper column published in Philadelphia, Chicago, Pittsburgh and elsewhere, Borelli addressed some of the public policy aspects of the case:
Besides violating the Second Amendment, D.C.'s gun ban is a violation of the fundamental rationale of law. In The Law, noted political theorist Frederic Bastiat wrote: 'It is evident, then, that the proper purpose of law is to use the power of its collective force to stop this fatal tendency to plunder instead of to work. All the measures of the law should protect property and punish plunder.' D.C. promotes the opposite, effectively protecting the plunderer and punishing the property owner.
Borelli also pointed out:
Research shows that law-abiding citizens using firearms for protection can save lives and deter crimes. In 'Armed: New Perspectives on Gun Control,' co-authors Gary Kleck and Don Kates note that 'as many as 2.5 million victims use guns to defend against crime each year' and 'handguns are actually used by victims to repel crime far more often than they are by criminals in committing crimes - as much as three times more.'
Borelli believes that in addition to it being unconstitutional, it is immoral to deny law-abiding citizens the right to legally possess a firearm, especially within crime-infested neighborhoods.

Borelli's column is available at

Project 21, a nonprofit and nonpartisan organization, has been a leading voice of the African-American community since 1992. For more information, contact David Almasi at (202) 507-6398 x11 or [email protected], or visit Project 21's website at

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Posted by Amy Ridenour at 2:20 PM

Thursday, June 12, 2008

Boumediene v. Bush Ruling Will Cost Lives

Project 21's Kevin Martin and four members of the U.S. Supreme Court fear the Supreme Court's ruling in Boumediene v. Bush (pdf) -- the Guantanamo Bay/enemy combatant decision -- will cost lives:
Supreme Court Gitmo Ruling Called "Chilling"; Will Cost American Lives

For Release: June 12, 2008
Contact: David Almasi at (202) 507-6398 x11 or [email protected]

Washington, D.C. - Responding to today's U.S. Supreme Court ruling in Boumediene v. Bush that allows suspected terrorists to challenge their incarceration, Project 21 member Kevin Martin is criticizing the Court, saying this decision puts national security at risk and sends a confusing signal to the military.

"As a Navy veteran who supported and defended our Constitution at home and abroad, today's Supreme Court ruling benefiting suspected terrorists is deeply disappointing," said Martin. "To grant suspected terrorists the same rights as those fighting to protect our nation is wrong. I consider this one of the most chilling legal rulings in my lifetime. Giving alleged foreign combatants the same rights as any American provides potential ammunition to those with political agendas running counter to the commander-in-chief. Our nation's enemies will now have the ability to gum up our federal courts with baseless legal challenges and further hinder the pursuit of justice."

In the razor-thin 5-4 ruling, the Supreme Court decision allows suspected terrorists such as those currently held at Guantanamo Bay, Cuba the right to challenge their incarceration in federal courts. It overturns a law passed in 2006 that limited judicial jurisdiction and affects 270 suspected terrorists currently being held by the U.S. military - including 14 suspects al Qaeda members.

Writing in dissent, and joined by Justices Antonin Scalia, Clarence Thomas and Samuel Alito, Chief Justice John Roberts wrote that the 2006 law struck down today was "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... One cannot help but think... 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."

In another scathing dissent, joined by Chief Justice Roberts and Justices Thomas and Alito, Justice Antonin Scalia wrote that the majority decision "warps the Constitution" and that "[our] nation will live to regret what the Court has done today." Scalia further warned the ruling "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." Scalia also wrote a practical affect of the decision will likely be harm to enemy combatants, as the decision is likely to result in enemy combatants being turned over to other nations by the United States following capture.

Martin added: "This sends a confounding message to our men and women in uniform, within our intelligence community and to our allies. Their hard-fought efforts to capture terrorist suspects maybe for naught because they could simply be released back on the battlefield on a legal technicality."
For more information, I recommend reading the decision.

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Posted by Amy Ridenour at 6:33 PM

Wednesday, April 30, 2008

Flaws in Clean Water Restoration Act Exposed in Congressional Hearings

From Mike Hardiman comes this roundup of information about recent Congressional hearings on the Clear Water Restoration Act:
Both the United States Senate and House of Representatives recently held hearings on the Oberstar/Feingold Clean Water Restoration Act. These hearings are a clear sign that the environmental community intends to push this controversial legislation to a vote in both houses of Congress sooner rather than later.

The Senate hearing was held on April 9 under the direction of bill co-sponsor Senator Barbara Boxer of California, and the House followed on April 16 with a hearing chaired by the legislation's House sponsor, Representative James Oberstar from Minnesota.

Contrary to the sponsors’ wishes, the two hearings exposed numerous flaws and very strong opposition to HR2421/S1870, the proposal to dramatically expand the federal government's role in land use regulation.

Senate Hearing

The Senate hearing, held by the Environment and Public Works Committee, unveiled several issues to which bill sponsors had difficulty responding.

Senator James Inhofe of Oklahoma spoke at length regarding the bill's removal of the phrase "navigable" from the term "navigable waters." He claimed it would lead to a dramatic expansion of federal authority over wetlands from navigable waters to nearly anything that is wet.

Both witnesses and Senators supporting the bill denied that it would be an expansion of power, despite the removal of the key modifying word "navigable." Meanwhile, a witness opposing the bill, rancher Randall Smith, said of removing the word navigable, "it is a dream for litigators" and "it opens up a whole can of worms."

Supporters stated that the bill's purpose is only to clear up confusion generated by a recent Supreme Court decision, known as the Rapanos case, while opponents showed that it was actually a considerable expansion of authority.

Bill supporter Senator Sheldon Whitehouse of Rhode Island, a former federal prosecutor and state attorney general, lectured at length witness David Brand, a county engineer from Ohio opposed to the legislation. Whitehouse insisted repeatedly that "we are just picking up where we left off (before the Rapanos decision)."

Brand replied, "No, and repeating that doesn't make it true."

An exasperated Whitehouse responded, "Yes, it does make it true."

Senator David Vitter of Louisiana was opposed to the bill, and stated that he could not think of any kind of water that was not covered by the bill.

Attempting to contradict him, Clinton-era EPA Administrator Carol Browner said puddles were exempt. Vitter asked for a definition of a puddle, and Browner was unable to directly answer the question. Senator Whitehouse unconvincingly chipped in, insisting that "EPA has no interest in chasing puddles."

Senator John Barrasso of Wyoming asked witnesses how the proposed bill benefits ranchers and farmers. Bill supporters did not address the question, while opponents said it would be harmful.

House Hearing

Representative James Oberstar is both the bill sponsor and chairman of the House Transportation and Infrastructure Committee, which held its own hearing April 15. This marathon session featured twenty-three witnesses and forty-four congressmen questioning them, resulting in an eleven hour hearing that stretched into late evening.

Oberstar accused the Supreme Court of "legislating from the bench" and said his bill only sought to repeal two court rulings on wetlands from recent years which protected private property, the SWANCC and Rapanos decisions.

This was challenged by congressman John Mica of Florida, who said the Oberstar bill would "fundamentally alter the course of water regulation" and produced a display featuring several hundred organizations opposed to the legislation and a pile of petitions several feet high opposing the bill.

Oberstar said his bill would clear up ambiguity that had been created by the Supreme Court. Mica agreed that there would be no ambiguity under the bill, because there would be no restriction on federal control of all water, since any non-federal or private rights would be overridden.

Congressman John Boozman from Arkansas pointed out that the bill proposes to regulate all "activities" near waters, instead of current law, which says only "discharges" into waters are regulated.

Some members were undecided. Congressman Nick Rahall from West Virginia did not take a position for or against the bill, but said "whiskey is for drinking, water is for fighting." After several witnesses complained about both current law and the proposed legislation, Congressman John Salazar from Colorado told them there must be more than complaints, and asked how to make the bill better.

Witness Virginia Albrecht pointed out another major change proposed in the bill, that federal agencies be given the power to regulate "to the limit of constitutional authority." Congresswoman Thelma Drake from Virginia agreed that these are "absolute words" which could fundamentally change federal-state relationships.

Attorney Robert Trout testified that "if this bill passes, it will put my kids through college" because of all the new litigation that will be generated.
Witness Linda Runbeck, a former Minnesota state legislator, said the bill negatively impacts private property rights and hurts families because most of their net worth is tied up in the land they own, which may be sharply devalued by the bill. She also brought up the poll commissioned by the National Center for Public Policy Research, which shows that when the bill is described to them, most Americans stating an opinion do not support it.

Overall, a very thorough airing of opinion was had in the two hearings, and the legislation's many weaknesses were displayed out in the open and for the record. However, the bill's supporters remain determined first to wipe out gains made by property owners in the Supreme Court, and, second, to expand federal authority beyond current law.
Comments to author Mike Hardiman can be sent to [email protected]. Mike Hardiman, a Capitol Hill veteran, recently completed a special educational project on the Clean Water Restoration Act for the National Center for Public Policy Research.


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Posted by Amy Ridenour at 12:55 AM

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