A Library of Pearls

2020-09-22T02:35:00.010-05:00

17th Century America

John Cotton's "Milk for Babes..." -- 1646

A Selection of Governing Laws of the Commonwealth of Massachusetts -- circa 1649

Sumptuary Regulations in New England

Increase Mather's "An Arrow Against Profane and Promiscuous Dancing..." -- circa 1684

18th Century America

General Thanksgiving by the President of the United States Of America, A Proclamation -- Saturday, October 3, 1789

President George Washington's Farewell Address -- 1796

19th Century America

The Ten Planks of the Communist Manifesto -- 1848 ...and Commentary

20th Century America

Vice President Spiro Agnew: A Form of Censorship Already Exists -- November 13, 1969

21st Century America

Democrats Used to be Mature -- Kobayashi Maru, 2007

Request for Censure of Rush Limbaugh by the Office of Senate Majority Leader Harry Reid -- October 2, 2007

The Audacity of the Democrats -- Rocco DiPippo -- June 7, 2008

Obama's Abortion Extremism -- Robert P. George --October 14, 2008

The Economic Plan To Destory America: The Cloward-Piven Strategy -- Jim Simpson -- Circa 2008

Rush Limbaugh's Address to the 2009 Conservative Political Action Conference -- February 28, 2009

The Founders Wanted Presidents to Fail If They Deserved To Fail -- Rush Limbaugh -- March 10,2009

Why The Founding Fathers Would Want Obama's Plans to Fail -- Byron York -- March 10, 2009

The State of Florida vs The U.S. Department of Health & Human Services -- January 31, 2011

21st Century | The Muslim Century: America and the World at War

"Use of Force" Resolution -- September 14, 2001

An American Soldier: "Why I Joined" -- October 29, 2006

Jihadism, Liberalism and Perversion -- December 9, 2007

A Quick Way Forward After Boumediene -- Andrew C. McCarthy -- June 16, 2008

The Supreme Court Goes to War -- John Yoo -- June 17, 2008

The State of Florida vs The U.S. Department of Health & Human Services -- January 31, 2011

2011-02-07T09:56:00.004-06:00

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

STATE OF FLORIDA,by and through
Attorney General Pam Bondi, et al.;

Plaintiffs,

v. Case No.: 3:10-cv-91-RV/EMT

UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES, et al.,

Defendants.

ORDER GRANTING SUMMARY JUDGMENT

On March 23, 2010, President Obama signed health care reform legislation: "The Patient Protection and Affordable Care Act." Pub. L. No. 111-148, 124 Stat. 119 (2010), as amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (the "Act").

This case, challenging the Constitutionality of the Act, was filed minutes after the President signed. It has been brought by the Attorneys General and/or Governors of twenty-six states (the "state plaintiffs") ¹; two private citizens (the "individual plaintiffs"); and the National Federation of Independent Business ("NFIB") (collectively, the "plaintiffs"). The defendants are the United States Department of Health and Human Services, the Department of Treasury, the Department of Labor, and their secretaries (collectively, the "defendants"). I emphasized once before, but it bears repeating again: this case is not about whether the Act is wise or unwise legislation, or whether it will solve or exacerbate the myriad problems in our health care system. In fact, it is not really about our health care system at all. It is principally about our federalist system, and it raises very important issues regarding the Constitutional role of the federal government.

James Madison, the chief architect of our federalist system, once famously observed:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

The Federalist No. 51, at 348 (N.Y. Heritage Press ed., 1945) ("The Federalist"). ² In establishing our government, the Founders endeavored to resolve Madison’s identified "great difficulty" by creating a system of dual sovereignty under which "[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." The Federalist No. 45, at 311 (Madison); see also U.S. Const. art. I, § 1 (setting forth the specific legislative powers "herein granted" to Congress). When the Bill of Rights was later added to the Constitution in 1791, the Tenth Amendment reaffirmed that relationship: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The Framers believed that limiting federal power, and allowing the "residual" power to remain in the hands of the states (and of the people), would help "ensure protection of our fundamental liberties" and "reduce the risk of tyranny and abuse." See Gregory v. Ashcroft, 501 U.S. 452, 458, 111 S. Ct. 2395, 115 L. Ed. 2d 410 (1991) (citation omitted). Very early, the great Chief Justice John Marshall noted "that those limits may not be mistaken, or forgotten, the constitution is written." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176, 2 L. Ed. 60 (1803). Over two centuries later, this delicate balancing act continues. Rather than being the mere historic relic of a bygone era, the principle behind a central government with limited power has "never been more relevant than in this day, when accretion, if not actual accession, of power to the federal government seems not only unavoidable, but even expedient." Brzonkala v. Virginia Polytechnic Institute, 169 F.3d 820, 826 (4th Cir. 1999) (en banc), aff’d sub nom, United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000).³

To say that the federal government has limited and enumerated power does not get one far, however, for that statement is a long-recognized and well-settled truism. McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 405, 4 L. Ed. 579 (1819) (“This government is acknowledged by all, to be one of enumerated powers. The
principle, that it can exercise only the powers granted to it, . . . is now universally
admitted.”) (Marshall, C.J.). The ongoing challenge is deciding whether a particular
federal law falls within or outside those powers. It is frequently a difficult task and
the subject of heated debate and strong disagreement. As Chief Justice Marshall
aptly predicted nearly 200 years ago, while everyone may agree that the federal
government is one of enumerated powers, “the question respecting the extent of
the powers actually granted, is perpetually arising, and will probably continue to
arise, so long as our system shall exist.” Id. This case presents such a question.
BACKGROUND
The background of this case --- including a discussion of the original claims,
the defenses, and an overview of the relevant law --- is set out in my order dated
October 14, 2010, which addressed the defendants’ motion to dismiss, and it is
incorporated herein. I will only discuss the background necessary to resolving the
case as it has been winnowed down to the two causes of action that remain.
In Count I, all of the plaintiffs challenge the “individual mandate” set forth in
Section 1501 of the Act, which, beginning in 2014 will require that everyone (with
certain limited exceptions) purchase federally-approved health insurance, or pay a
monetary penalty.4 The individual mandate allegedly violates the Commerce Clause,
4 I previously rejected the defendants’ argument that this penalty was really
a tax, and that any challenge thereto was barred by the Anti-Injunction Act. My
earlier ruling on the defendants’ tax argument is incorporated into this order and,
significantly, has the effect of focusing the issue of the individual mandate on
whether it is authorized by the Commerce Clause. To date, every court to consider
this issue (even those that have ruled in favor of the federal government) have also
rejected the tax and/or Anti-Injunction arguments. See Goudy-Bachman v. U.S.
Dep’t of Health & Human Servs., 2011 WL 223010, at *9-*12 (M.D. Pa. Jan. 24,
2011); Virginia v. Sebelius, 728 F. Supp. 2d 768, 786-88 (E.D. Va. 2010); Liberty
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 4 of 78
Page 5 of 78
which is the provision of the Constitution Congress relied on in passing it. In Count
IV, the state plaintiffs challenge the Act to the extent that it alters and amends the
Medicaid program by expanding that program, inter alia, to: (i) include individuals
under the age of 65 with incomes up to 133% of the federal poverty level, and (ii)
render the states responsible for the actual provision of health services thereunder.
This expansion of Medicaid allegedly violates the Spending Clause and principles of
federalism protected under the Ninth and Tenth Amendments. The plaintiffs seek a
declaratory judgment that the Act is unconstitutional and an injunction against its
enforcement.
These two claims are now pending on cross motions for summary judgment
(docs. 80, 82), which is a pre-trial vehicle through which a party shall prevail if the
evidence in the record “shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56.
While the parties dispute numerous facts (primarily in the context of the Medicaid
count, noted infra), they appear to agree that disposition of this case by summary
judgment is appropriate --- as the dispute ultimately comes down to, and involves,
pure issues of law. Both sides have filed strong and well researched memoranda in
support of their motions for summary judgment (“Mem.”), responses in opposition
(“Opp.”), and replies (“Reply”) in further support. I held a lengthy hearing and oral
argument on the motions December 16, 2010 (“Tr.”). In addition to this extensive
briefing by the parties, numerous organizations and individuals were granted leave
to, and did, file amicus curiae briefs (sixteen total) in support of the arguments and
claims at issue.
Univ., Inc. v. Geithner, --- F. Supp. 2d ---, 2010 WL 4860299, at *9-*11 (W.D. Va.
Nov. 30, 2010); U.S. Citizens Assoc. v. Sebelius, --- F. Supp. 2d ---, 2010 WL
4947043, at *5 (N.D. Ohio Nov. 22, 2010); Thomas More Law Center v. Obama,
720 F. Supp. 2d 882, 890-91 (E.D. Mich. 2010).
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 5 of 78
Page 6 of 78
I have carefully reviewed and considered all the foregoing materials, and now
set forth my rulings on the motions and cross-motions for summary judgment. I will
take up the plaintiffs’ two claims in reverse order.
DISCUSSION
I. Medicaid Expansion (Count Four)
For this claim, the state plaintiffs object to the fundamental and “massive”
changes in the nature and scope of the Medicaid program that the Act will bring
about. They contend that the Act violates the Spending Clause [U.S. Const. art. I,
§ 8, cl. 1] as it significantly expands and alters the Medicaid program to such an
extent they cannot afford the newly-imposed costs and burdens. They insist that
they have no choice but to remain in Medicaid as amended by the Act, which will
eventually require them to “run their budgets off a cliff.” This is alleged to violate
the Constitutional spending principles set forth in South Dakota v. Dole, 483 U.S.
203, 107 S. Ct. 2793, 97 L. Ed. 2d 171 (1987), and in other cases.5
Under Dole, there are four restrictions on Congress’ Constitutional spending
power: (1) the spending must be for the general welfare; (2) the conditions must be
stated clearly and unambiguously; (3) the conditions must bear a relationship to the
purpose of the program; and 4) the conditions imposed may not require states “to
engage in activities that would themselves be unconstitutional.” Supra, 483 U.S. at
207-10. In addition, a spending condition cannot be “coercive.” This conceptional
requirement is also from Dole, where the Supreme Court speculated (in dicta at the
end of that opinion) that “in some circumstances the financial inducement offered
by Congress might be so coercive as to pass the point at which ‘pressure turns into
5 The state plaintiffs alleged in their complaint that the Medicaid provisions
also violated the Ninth and Tenth Amendments, but those claims have not been
advanced or briefed in their summary judgment motion (except in a single passing
sentence, see Pl. Mem. at 25).
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 6 of 78
Page 7 of 78
compulsion.’” See id. at 211 (citation omitted). If that line is crossed, the Spending
Clause is violated.
Preliminarily, I note that in their complaint the state plaintiffs appear to have
relied solely on a “coercion and commandeering” theory. Nowhere in that pleading
do they allege or intimate that the Act also violates the four “general restrictions”
in Dole, nor did they make the argument in opposition to the defendants’ previous
motion to dismiss. Thus, as I stated in my earlier order after describing Dole’s four
general restrictions: “The plaintiffs do not appear to dispute that the Act meets
these restrictions. Rather, their claim is based principally on [the coercion theory].”
Apparently expanding that argument, the state plaintiffs now argue (very briefly, in
less than one full page) that the Act’s Medicaid provisions violate the four general
restrictions. See Pl. Mem. at 44-45. This belated argument is unpersuasive. The
Act plainly meets the first three of Dole’s spending restrictions, and it meets the
fourth as long as there is no other required activity that would be independently
unconstitutional. Thus, the only real issue with respect to Count IV, as framed in
the pleadings, is whether the Medicaid provisions are impermissibly coercive and
effectively commandeer the states.
The gist of this claim is that because Medicaid is the single largest federal
grant-in-aid program to the states, and because the states and the needy persons
receiving that aid have come to depend upon it, the state plaintiffs are faced with
an untenable Hobson’s Choice. They must either (1) accept the Act’s transformed
Medicaid program with its new costs and obligations, which they cannot afford, or
(2) exit the program altogether and lose the federal matching funds that are
necessary and essential to provide health care coverage to their neediest citizens
(along with other Medicaid-linked federal funds). Either way, they contend that their
state Medicaid systems will eventually collapse, leaving millions of their neediest
residents without health care. The state plaintiffs assert that they effectively have
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 7 of 78
Page 8 of 78
no choice other than to participate in the program.
In their voluminous materials filed in support of their motion for summary
judgment, the state plaintiffs have identified some serious financial and practical
problems that they are facing under the Act, especially its costs. They present a
bleak fiscal picture. At the same time, much of those facts have been disputed by
the defendants in their equally voluminous filings; and also by some of the states
appearing in the case as amici curiae, who have asserted that the Act will in the
long run save money for the states. It is simply impossible to resolve this factual
dispute now as both sides’ financial data are based on economic assumptions,
estimates, and projections many years out. In short, there are numerous genuine
disputed issues of material fact with respect to this claim that cannot be resolved
on summary judgment.6 However, even looking beyond these presently impossibleto-
resolve disputed issues of fact, there is simply no support for the state plaintiffs’
coercion argument in existing case law.
In considering this issue at the motion to dismiss stage, I noted that state
6 Perhaps anticipating this, the state plaintiffs maintained in response to the
defendants’ filings that “the entire question of whether the States’ costs might to
some extent be offset by collateral savings is legally irrelevant.” See Pl. Opp. at 29.
Thus, “even if the States were projected to achieve collateral savings, those
savings would in no way lessen the coercion and commandeering of which Plaintiff
States complain, because they would still be required to do Congress’s bidding.” Id.
at 41-42. However, it would appear from the operative complaint that the coercion
claim has always been rooted in the underlying contention that the Act forces the
states to expend resources that they cannot afford: “Plaintiff States cannot afford
the unfunded costs of participating under the Act, but effectively have no choice
other than to participate.” Second Amended Complaint at ¶ 84; see also id. at ¶ 86
(referring to the “fiscal impact” of the Medicaid expansion and explaining that it will
compel states “to assume costs they cannot afford”); id. at ¶ 41 (Act will “expand
eligibility for enrollment beyond the State’s ability to fund its participation”); id. at ¶
56 (referring to the projected billions of dollars in additional costs “stemming from
the Medicaid-related portions of the Act” which will “grow in succeeding years”);
id. at ¶ 66 (referencing the “harmful effects of the Act on [the state] fiscs”).
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 8 of 78
Page 9 of 78
participation in the Medicaid program under the Act is --- as it always has been ---
voluntary. This is a fundamental binary element: it either is voluntary, or it is not.
While the state plaintiffs insist that their participation is involuntary, and that they
cannot exit the program, the claim is contrary to the judicial findings in numerous
other Medicaid cases [see, e.g., Wilder v. Virginia Hosp. Assoc., 496 U.S. 498,
502, 110 S. Ct. 2510, 110 L. Ed. 2d 455 (1990) (observing that “Medicaid is a
cooperative federal-state program [and] participation in the program is voluntary”);
Florida Assoc. of Rehab. Facilities v. Florida Dep’t of Health & Rehab. Servs, 225
F.3d 1208, 1211 (11th Cir. 2000) (“No state is obligated to participate in the
Medicaid program.”); Doe v. Chiles, 136 F.3d 709, 722 (11th Cir. 1998) (Medicaid
is a program from which the state “always retains [the] option” to withdraw)], and
belied by numerous published news reports that several states (including certain of
the plaintiffs in this case) are presently considering doing exactly that. Furthermore,
two plaintiff states have acknowledged in declarations filed in support of summary
judgment that they can withdraw from the program. See Declaration of Michael J.
Willden (Director of Department of Health and Human Services, Nevada) (“Nevada
can still consider opting out of Medicaid a viable option.”); Declaration of Deborah
K. Bowman (Secretary of Department of Social Services, South Dakota) (conceding
that although it would be detrimental to its Medicaid recipients, South Dakota could
“cease participation in the Medicaid Program”). When the freedom to “opt out” of
the program is viewed in light of the fact that Congress has expressly reserved the
right to alter or amend the Medicaid program [see 42 U.S.C. § 1304 (“The right to
alter, amend, or repeal any provision of this chapter is hereby reserved to the
Congress.”)], and has done so many times over the years, I observed in my earlier
order that the plaintiffs’ argument was not strong. See Harris v. McRae, 448 U.S.
297, 301, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980) (stating that “participation in
the Medicaid program is entirely optional, [but] once a State elects to participate, it
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 9 of 78
Page 10 of 78
must comply with the requirements”).
Indeed, a survey of the legal landscape revealed that there was “very little
support for the plaintiffs’ coercion theory argument” as every single federal Court
of Appeals called upon to consider the issue has rejected the coercion theory as a
viable claim. See, e.g., Doe v. Nebraska, 345 F.3d 593, 599-600 (8th Cir. 2003);
Kansas v. United States, 214 F.3d 1196, 1201-02 (10th Cir. 2000); California v.
United States, 104 F.3d 1086, 1092 (9th Cir. 1997); Oklahoma v. Schweiker, 655
F.2d 401, 413-14 (D.C. Cir. 1981); State of New Hampshire Dep’t of Employment
Sec. v. Marshall, 616 F.2d 240, 246 (1st Cir. 1980); but see West Virginia v. U.S.
Dep’t of Health & Human Servs., 289 F.3d 281, 288-90 (4th Cir. 2002) (referring
to a prior decision of that court, Commonwealth of Virginia Dep’t of Education v.
Riley, 106 F.3d 559 (4th Cir. 1997), where six of the thirteen judges on an en banc
panel stated in dicta that a coercion claim may be viable in that court, but going on
to note that due to “strong doubts” about the viability of the coercion theory “most
courts faced with the question have effectively abandoned any real effort to apply
the coercion theory” after finding, in essence, that it “raises political questions that
cannot be resolved by the courts”).
In the absence of an Eleventh Circuit case on point, the state plaintiffs’ claim
was “plausible” at the motion to dismiss stage. Thus, the plaintiffs were allowed to
proceed and provide evidentiary support and further legal support for a judicially
manageable standard or coherent theory for determining when, in the words of the
Supreme Court, a federal spending condition “pass[es] the point at which ‘pressure
turns into compulsion.’” See Dole, supra, 483 U.S. at 211. The evidentiary support
is substantially in dispute, as already noted, and further legal support has not been
forthcoming. It is now apparent that existing case law is inadequate to support the
state plaintiffs’ coercion claim. As the Ninth Circuit has explained in its analysis of
an earlier coercion claim made by the State of Nevada:
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 10 of 78
Page 11 of 78
We can hardly fault appellant [for not providing the court
with any principled definition of the word “coercion”]
because our own inquiry has left us with only a series of
unanswered questions. Does the relevant inquiry turn on
how high a percentage of the total programmatic funds is
lost when federal aid is cut-off? Or does it turn, as
Nevada claims in this case, on what percentage of the
federal share is withheld? Or on what percentage of the
state's total income would be required to replace those
funds? Or on the extent to which alternative private,
state, or federal sources of . . . funding are available?
There are other interesting and more fundamental
questions. For example, should the fact that Nevada,
unlike most states, fails to impose a state income tax on
its residents play a part in our analysis? Or, to put the
question more basically, can a sovereign state which is
always free to increase its tax revenues ever be coerced
by the withholding of federal funds --- or is the state
merely presented with hard political choices?
Nevada v. Skinner, 884 F.2d 445, 448 (9th Cir. 1989). It is not simply a matter of
these being generally difficult or complex questions for courts to resolve because,
as I have said, “courts deal every day with the difficult complexities of applying
Constitutional principles set forth and defined by the Supreme Court.” Rather, as
Justice Cardozo cautioned in what appears to have been the first case to hint at
the possibility of a coercion theory claim, “to hold that motive or temptation is
equivalent to coercion is to plunge the law in endless difficulties.” See Steward
Machine Co. v. Davis, 301 U.S. 548, 589-90, 57 S. Ct. 883, 81 L. Ed. 1279
(1937) (emphasis added); see also, e.g., Skinner, supra, 884 F.2d at 448 (“The
difficulty if not the impropriety of making judicial judgments regarding a state's
financial capabilities renders the coercion theory highly suspect as a method for
resolving disputes between federal and state governments.”).
In short, while the plaintiffs’ coercion theory claim was plausible enough to
survive dismissal, upon full consideration of the relevant law and the Constitutional
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 11 of 78
Page 12 of 78
principles involved, and in light of the numerous disputed facts alluded to above, I
must conclude that this claim cannot succeed and that the defendants are entitled
to judgment as a matter of law. In so ruling, I join all courts to have considered this
issue and reached the same result, even in factual situations that involved (as here)
the potential withdrawal of a state’s entire Medicaid grant. See, e.g., Schweiker,
supra, 655 F.2d at 414 (“The courts are not suited to evaluating whether the
states are faced here with an offer they cannot refuse or merely a hard choice.”);
California, supra, 104 F.3d at 1086 (rejecting coercion theory argument based on
the claim that while the state joined Medicaid voluntarily, it had grown to depend
on federal funds and “now has no choice but to remain in the program in order to
prevent a collapse of its medical system”).
I appreciate the difficult situation in which the states find themselves. It is a
matter of historical fact that at the time the Constitution was drafted and ratified,
the Founders did not expect that the federal government would be able to provide
sizeable funding to the states and, consequently, be able to exert power over the
states to the extent that it currently does. To the contrary, it was expected that
the federal government would have limited sources of tax and tariff revenue, and
might have to be supported by the states. This reversal of roles makes any statefederal
partnership somewhat precarious given the federal government’s enormous
economic advantage. Some have suggested that, in the interest of federalism, the
Supreme Court should revisit and reconsider its Spending Clause cases. See Lynn
A. Baker, The Spending Power and the Federalist Revival, 4 Chap. L. Rev. 195-96
(2001) (maintaining the “greatest threat to state autonomy is, and has long been,
Congress’s spending power” and “the states will be at the mercy of Congress so
long as there are no meaningful limits on its spending power”). However, unless
and until that happens, the states have little recourse to remaining the very junior
partner in this partnership.
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 12 of 78
Page 13 of 78
Accordingly, summary judgment must be granted in favor of the defendants
on Count IV.
II. Individual Mandate (Count One)
For this claim, the plaintiffs contend that the individual mandate exceeds
Congress’ power under the Commerce Clause. To date, three district courts have
ruled on this issue on the merits. Two have held that the individual mandate is a
proper exercise of the commerce power [Liberty Univ., Inc. v. Geithner, --- F. Supp.
2d ---, 2010 WL 4860299 (W.D. Va. Nov. 30, 2010); Thomas More Law Center v.
Obama, 720 F. Supp. 2d 882 (E.D. Mich. 2010)], while the other court held that it
violates the Commerce Clause. Virginia v. Sebelius, 728 F. Supp. 2d 768 (E.D. Va.
2010).
At issue here, as in the other cases decided so far, is the assertion that the
Commerce Clause can only reach individuals and entities engaged in an “activity”;
and because the plaintiffs maintain that an individual’s failure to purchase health
insurance is, almost by definition, “inactivity,” the individual mandate goes beyond
the Commere Clause and is unconstitutional. The defendants contend that activity
is not required before Congress can exercise its Commerce Clause power, but that,
even if it is required, not having insurance constitutes activity. The defendants also
claim that the individual mandate is sustainable for the “second reason” that it falls
within the Necessary and Proper Clause.7
7 The Necessary and Proper Clause is not really a separate inquiry, but rather
is part and parcel of the Commerce Clause analysis as it augments that enumerated
power by authorizing Congress “To make all Laws which shall be necessary and
proper” to regulate interstate commerce. See, e.g., Gonzales v. Raich, 545 U.S. 1,
22, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005); see also id. at 34-35, 39 (Scalia, J.,
concurring in judgment); accord Garcia v. Vanguard Car Rental USA, Inc., 540 F.3d
1242, 1249 (11th Cir. 2008) (the Commerce Clause power is “the combination of
the Commerce Clause per se and the Necessary and Proper Clause”). Nevertheless,
I will consider the two arguments separately for ease of analysis, and because that
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 13 of 78
Page 14 of 78
A. Standing to Challenge the Individual Mandate
Before addressing the individual mandate, I must first take up the issue of
the plaintiffs’ standing to pursue this claim. I previously held on the motion to
dismiss that the individual plaintiffs and NFIB had standing, but the defendants
have re-raised the issue on summary judgment.8
One of the individual plaintiffs, Mary Brown, has filed a declaration in which
she avers, among other things: (i) that she is a small business owner and member
of NFIB; (ii) that she does not currently have health insurance and has not had
health insurance for the past four years; (iii) that she regularly uses her personal
funds to meet her business expenses; (iv) that she is not eligible for Medicaid or
Medicare and will not be eligible in 2014; (v) that she is subject to the individual
mandate and objects to being required to comply as she does not believe the cost
of health insurance is a wise or acceptable use of her resources; (vi) that both she
and her business will be harmed if she is required to buy health insurance that she
neither wants nor needs because it will force her to divert financial resources from
her other priorities, including running her business, and doing so will “threaten my
ability to maintain my own, independent business”; (vii) that she would be forced
to reorder her personal and business affairs because, “[w]ell in advance of 2014, I
must now investigate whether and how to both obtain and maintain the required
insurance”; and lastly, (viii) that she “must also now investigate the impact” that
compliance with the individual mandate will have on her priorities and whether she
is how the defendants have framed and presented their arguments. See Def. Mem.
at 23 (contending that the individual mandate is an essential part of the regulatory
health care reform effort, and is thus “also a valid exercise of Congress’s authority
if the provision is analyzed under the Necessary and Proper Clause”).
8 It was not necessary to address standing for the Medicaid challenge as the
defendants did not dispute that the states could pursue that claim.
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 14 of 78
Page 15 of 78
can maintain her business, or whether, instead, she will have to lay off employees,
close her business, and seek employment that provides qualifying health insurance
as a benefit.
The other individual plaintiff, Kaj Ahlburg, has filed a declaration in which he
avers, inter alia: (i) that he is retired and holds no present employment; (ii) that he
has not had health care insurance for the past six years; (iii) that he has no desire
or intention to buy health insurance as he is currently, and expects to remain, able
to pay for his and his family’s own health care needs; (iv) that he is not eligible for
Medicaid or Medicare and will not be eligible in 2014; (v) that he is subject to the
individual mandate and he objects to being forced to comply with it as it does not
represent “a sensible or acceptable use of my financial resources” and will force
him “to divert funds from other priorities which I know to be more important for
myself and my family”; and (vi) that he “must now investigate” how and whether
to rearrange his finances “to ensure the availability of sufficient funds” to pay for
the required insurance premiums.
These declarations are adequate to support standing for the reasons set forth
and discussed at length in my prior opinion, which need not be repeated here in any
great detail. To establish standing to challenge a statute, a plaintiff needs to show
“a realistic danger of sustaining a direct injury as a result of the statute’s operation
or enforcement” [Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298,
99 S. Ct. 2301, 60 L. Ed. 2d 895 (1979)]; that is “pegged to a sufficiently fixed
period of time” [ACLU of Florida, Inc. v. Miami-Dade County School Bd., 557 F.3d
1177, 1194 (11th Cir. 2009)]; and which is not “merely hypothetical or conjectural”
[Florida State Conference of the NAACP v. Browning, 522 F.3d 1153, 1161 (11th
Cir. 2008)]. The individual plaintiffs, Ms. Brown in particular, have established that
because of the financial expense they will definitively incur under the Act in 2014,
they are needing to take investigatory steps and make financial arrangements now
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 15 of 78
Page 16 of 78
to ensure compliance then. That is enough to show standing, as the clear majority
of district courts to consider legal challenges to the individual mandate have held.
See Goudy-Bachman v. U.S. Dep’t of Health & Human Servs., 2011 WL 223010,
at *4-*7 (M.D. Pa. Jan. 24, 2011); Liberty Univ., Inc., supra, 2010 WL 4860299,
at *5-*7; U.S. Citizens Assoc., supra, 2010 WL 4947043, at *3; Thomas More
Law Center, supra, 720 F. Supp. 2d 882, 887-89; but see Baldwin v. Sebelius,
2010 WL 3418436, at *3 (S.D. Cal. Aug. 27, 2010) (holding that plaintiff in that
case lacked standing to challenge individual mandate on the grounds that by 2014
he may have secured insurance on his own). As the District Court for the Eastern
District of Michigan properly noted in Thomas More Law Center (a case on which
the defendants heavily rely because it ultimately upheld the individual mandate):
“[T]he government is requiring plaintiffs to undertake an expenditure, for which the
government must anticipate that significant financial planning will be required. That
financial planning must take place well in advance of the actual purchase of
insurance in 2014 . . . There is nothing improbable about the contention that the
Individual Mandate is causing plaintiffs to feel economic pressure today.” Thomas
More Law Center, supra, 720 F. Supp. 2d at 889.9
Because the individual plaintiffs have demonstrated standing, including NFIB
member Mary Brown, that means (as also discussed in my earlier order) that NFIB
has associational standing as well. This leaves the question of the state plaintiffs’
standing to contest the individual mandate --- an issue which was not necessary to
reach on the motion to dismiss, but which the plaintiffs request that I address now.
The state plaintiffs have raised several different grounds for standing. One of
those grounds is that some of the states have passed legislation seeking to protect
9 I note that Thomas More Law Center is on appeal to the Sixth Circuit, and
in their recently-filed appellate brief the Department of Justice has expressly
declined to challenge the district court’s conclusion that the plaintiffs had standing.
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 16 of 78
Page 17 of 78
their citizens from forced compliance with the individual mandate. For example, on
March 17, 2010, before the Act passed into law, plaintiff Idaho enacted the Idaho
Health Freedom Act, which provides in pertinent part:
(1) The power to require or regulate a person's choice in
the mode of securing health care services, or to impose a
penalty related thereto, is not found in the Constitution of
the United States of America, and is therefore a power
reserved to the people pursuant to the Ninth Amendment,
and to the several states pursuant to the Tenth
Amendment. The state of Idaho hereby exercises its
sovereign power to declare the public policy of the state
of Idaho regarding the right of all persons residing in the
state of Idaho in choosing the mode of securing health
care services free from the imposition of penalties, or the
threat thereof, by the federal government of the United
States of America relating thereto.
(2) It is hereby declared that . . . every person within the
state of Idaho is and shall be free to choose or decline to
choose any mode of securing health care services
without penalty or threat of penalty by the federal
government of the United States of America.
I.C. § 39-9003 (2010).
Similarly, on March 22, 2010, also before the Act became law, Utah passed
legislation declaring that the then-pending federal government proposals for health
care reform “infringe on state powers” and “infringe on the rights of citizens of this
state to provide for their own health care” by “requiring a person to enroll in a third
party payment system” and “imposing fines on a person who chooses to pay
directly for health care rather than use a third party payer.” See generally U.C.A.
1953 § 63M-1-2505.5.
Judge Henry Hudson considered similar legislation in one of the two Virginia
cases. After engaging in a lengthy analysis and full discussion of the applicable law
[see generally Virginia v. Sebelius, 702 F. Supp. 2d 598, 602-07 (E.D. Va. 2010)],
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 17 of 78
Page 18 of 78
he concluded that despite the statute’s declaratory nature, the Commonwealth had
adequate standing to bring the suit insofar as “[t]he mere existence of the lawfullyenacted
statue is sufficient to trigger the duty of the Attorney General of Virginia to
defend the law and the associated sovereign power to enact it.” See id. at 605-06.
I agree with Judge Hudson’s thoughtful analysis of the issue and adopt it here. The
States of Idaho and Utah, through plaintiff Attorneys General Lawrence G. Wasden
and Mark L. Shurtleff, have standing to prosecute this case based on statutes duly
passed by their legislatures, and signed into law by their Governors.10
In sum, the two individual plaintiffs (Brown and Ahlburg), the association
(NFIB), and at least two of the states (Idaho and Utah) have standing to challenge
the individual mandate. This eliminates the need to discuss the standing issue with
respect to the other state plaintiffs, or the other asserted bases for standing. See
Watt v. Energy Action Educ. Found., 454 U.S. 151, 160, 102 S. Ct. 205, 70 L.
Ed. 2d 309 (1981) (“Because we find California has standing, we do not consider
the standing of the other plaintiffs.”); Village of Arlington Heights v. Metropolitan
Housing Dev. Corp., 429 U.S. 252, 264 n.9, 97 S. Ct. 555, 50 L. Ed. 2d 450
(1977) (“Because of the presence of this plaintiff, we need not consider whether
the other individual and corporate plaintiffs have standing to maintain this suit.”);
see also Mountain States Legal Foundation v. Glickman, 92 F.3d 1228, 1232 (D.C.
Cir. 1996) (if standing is shown for at least one plaintiff with respect to each claim,
“we need not consider the standing of the other plaintiffs to raise that claim”).
Having reaffirmed that the plaintiffs have adequate standing to challenge the
individual mandate, I will consider whether that provision is an appropriate exercise
of power under the Commerce Clause, and, if not, whether it is sustainable under
10 I note that several other plaintiff states passed similar laws after the Act
became law and during the pendency of this litigation. Other states have similar
laws still pending in their state legislatures.
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 18 of 78
Page 19 of 78
the Necessary and Proper Clause. The Constitutionality of the individual mandate is
the crux of this entire case.
B. Analysis
(1) The Commerce Clause
The current state of Commerce Clause law has been summarized and defined
by the Supreme Court on several occasions:
[W]e have identified three broad categories of activity
that Congress may regulate under its commerce power.
First, Congress may regulate the use of the channels of
interstate commerce. Second, Congress is empowered to
regulate and protect the instrumentalities of interstate
commerce, or persons or things in interstate commerce,
even though the threat may come only from intrastate
activities. Finally, Congress’ commerce authority includes
the power to regulate those activities having a substantial
relation to interstate commerce, i.e., those activities that
substantially affect interstate commerce.
United States v. Lopez, 514 U.S. 549, 558-59, 115 S. Ct. 1624, 131 L. Ed. 2d
626 (1995) (citations omitted); accord United States v. Morrison, 529 U.S. 598,
608-09, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000); see also Hodel v. Virginia
Surface Min. & Reclamation Assoc., Inc., 452 U.S. 264, 276-77, 101 S. Ct. 2352,
69 L. Ed. 2d 1 (1981); Perez v. United States, 402 U.S. 146, 150, 91 S. Ct. 1357,
28 L. Ed. 2d 686 (1971). It is thus well settled that Congress has the authority
under the Commerce Clause to regulate three --- and only three --- “categories of
activity.” Lopez, supra, 514 U.S. at 558; see also, e.g., Garcia v. Vanguard Car
Rental USA, Inc., 540 F.3d 1242, 1249-51 (11th Cir. 2008) (discussing in detail
the “three categories of activities” that Congress can regulate); United States v.
Maxwell, 446 F.3d 1210, 1212 (11th Cir. 2006) (noting that, “to date,“ Congress
can regulate only “three categories of activities”). The third category is the one at
issue in this case.
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 19 of 78
Page 20 of 78
As will be seen, the “substantially affects” category is the most frequently
disputed and “most hotly contested facet of the commerce power.” Garcia, supra,
540 F.3d at 1250. This is because, while under the first two categories Congress
may regulate and protect actual interstate commerce,
the third allows Congress to regulate intrastate
noncommercial activity, based on its effects.
Consideration of effects necessarily involves matters of
degree [and] thus poses not two hazards, like Scylla and
Charybdis, but three. If we entertain too expansive an
understanding of effects, the Constitution’s enumeration
of powers becomes meaningless and federal power
becomes effectively limitless. If we entertain too narrow
an understanding, Congress is stripped of its enumerated
power, reinforced by the Necessary and Proper Clause, to
protect and control commerce among the several states.
If we employ too nebulous a standard, we exacerbate the
risk that judges will substitute their own subjective or
political calculus for that of the elected representatives of
the people, or will appear to be doing so.
United States v. Patton, 451 F.3d 615, 622-23 (10th Cir. 2006). Before attempting
to navigate among these three “hazards,” a full review of the historical roots of the
commerce power, and a discussion of how we got to where we are today, may be
instructive.
(a) The Commerce Clause in its Historical Context
Chief Justice Marshall wrote in 1824, in the first ever Commerce Clause
case to reach the Supreme Court:
As men, whose intentions require no concealment,
generally employ the words which most directly and aptly
express the ideas they intend to convey, the enlightened
patriots who framed our constitution, and the people who
adopted it, must be understood to have employed words
in their natural sense, and to have intended what they
have said.
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 188, 6 L. Ed. 23 (1824). Justice Marshall
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 20 of 78
Page 21 of 78
continued his opinion by noting that if, “from the imperfection of human language,”
there are doubts as to the extent of any power authorized under the Constitution,
the underlying object or purpose for which that power was granted “should have
great influence in the construction.” Id. at 188-89. In other words, in determining
the full extent of any granted power, it may be helpful to not only focus on what
the Constitution says (i.e., the actual language used), but also why it says what it
says (i.e., the problem or issue it was designed to address). Both will be discussed
in turn.
The Commerce Clause is a mere sixteen words long, and it provides that
Congress shall have the power:
To regulate Commerce with foreign Nations, and among
the several States, and with the Indian Tribes.
U.S. Const. art I, § 8, cl. 3. For purposes of this case, only seven words are
relevant: “To regulate Commerce . . . among the several States.” There is
considerable historical evidence that in the early years of the Union, the word
“commerce” was understood to encompass trade, and the intercourse, traffic, or
exchange of goods; in short, “the activities of buying and selling that come after
production and before the goods come to rest.” Robert H. Bork & Daniel E. Troy,
Locating the Boundaries: The Scope of Congress’s Power to Regulate Commerce,
25 Harv. J. L. & Pub. Pol’y 849, 861-62 (2002) (“Bork & Troy”) (citing, inter alia,
dictionaries from that time which defined commerce as “exchange of one thing for
another”). In a frequently cited law review article, one Constitutional scholar has
painstakingly tallied each appearance of the word “commerce” in Madison’s notes
on the Constitutional Convention and in The Federalist, and discovered that in none
of the ninety-seven appearances of that term is it ever used to refer unambiguously
to activity beyond trade or exchange. See Randy E. Barnett, The Original Meaning
of the Commerce Clause, 68 U. Chi. L. Rev. 101, 114-16 (2001) (“Barnett”); see
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 21 of 78
Page 22 of 78
also id. at 116 (further examining each and every use of the word that appeared in
the state ratification convention reports and finding “the term was uniformly used
to refer to trade or exchange”). Even a Constitutional scholar who has argued for
an expansive interpretation of the Commerce Clause (and, in fact, has been cited
to, and relied on, by the defendants in this case) has acknowledged that when the
Constitution was drafted and ratified, commerce “was the practical equivalent of
the word ‘trade.’” See Robert L. Stern, That Commerce Which Concerns More
States than One, 47 Harv. L. Rev. 1335, 1346 (1934) (“Stern”).
The Supreme Court’s first description of commerce (and still the most widely
accepted) is from Gibbons v. Ogden, supra, which involved a New York law that
sought to limit the navigable waters within the jurisdiction of that state. In holding
that “commerce” comprehended navigation, and thus it fell within the reach of the
Commerce Clause, Chief Justice Marshall explained that “Commerce, undoubtedly,
is traffic, but it is something more: it is intercourse. It describes the commercial
intercourse between nations, and parts of nations, in all its branches, and is
regulated by prescribing rules for carrying on that intercourse.” 22 U.S. at 72. This
definition is consistent with accepted dictionary definitions of the Founders’ time.
See 1 Samuel Johnson, A Dictionary of the English Language (4th ed. 1773)
(commerce defined as “Intercourse; exchange of one thing for another; interchange
of any thing; trade; traffick”). And it remained a good definition of the Supreme
Court’s Commerce Clause interpretation throughout the Nineteenth Century. See,
e.g., Kidd v. Pearson, 128 U.S. 1, 20-21, 9 S. Ct. 6, 32 L. Ed. 346 (1888) (“The
legal definition of the term [commerce] . . . consists in intercourse and traffic,
including in these terms navigation and the transportation and transit of persons
and property, as well as the purchase, sale, and exchange of commodities”). As
Alexander Hamilton intimated in The Federalist, however, it did not at that time
encompass manufacturing or agriculture. See The Federalist No. 34, at 212-13
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 22 of 78
Page 23 of 78
(noting that the “encouragement of agriculture and manufactures” was to remain
an object of state expenditure). This interpretation of commerce as being primarily
concerned with the commercial intercourse associated with the trade or exchange
of goods and commodities is consistent with the original purpose of the Commerce
Clause (discussed immediately below), which is entitled to “great influence in [its]
construction.” See Gibbons, supra, 22 U.S. at 188-89.11
There is no doubt historically that the primary purpose behind the Commerce
Clause was to give Congress power to regulate commerce so that it could eliminate
the trade restrictions and barriers by and between the states that had existed under
the Articles of Confederation. Such obstructions to commerce were destructive to
the Union and believed to be precursors to war. The Supreme Court has explained
this rationale:
When victory relieved the Colonies from the pressure for
solidarity that war had exerted, a drift toward anarchy
11 As an historical aside, I note that pursuant to this original understanding
and interpretation of “commerce,” insurance contracts did not qualify because
“[i]ssuing a policy of insurance is not a transaction of commerce.” Paul v. Virginia,
75 U.S. (8 Wall.) 168, 183, 19 L. Ed. 357 (1868) (further explaining that insurance
contracts “are not articles of commerce in any proper meaning of the word” as
they are not objects “of trade and barter,” nor are they “commodities to be shipped
or forwarded from one State to another, and then put up for sale”). That changed
in 1944, when the Supreme Court held that Congress could regulate the insurance
business under the Commerce Clause. United States v. South-Eastern Underwriters
Assoc., 322 U.S. 533, 64 S. Ct. 1162, 88 L. Ed. 1440 (1944). “Concerned that
[this] decision might undermine state efforts to regulate insurance, Congress in
1945 enacted the McCarran-Ferguson Act. Section 1 of the Act provides that
‘continued regulation and taxation by the several States of the business of
insurance is in the public interest,’ and that ‘silence on the part of the Congress
shall not be construed to impose any barrier to the regulation or taxation of such
business by the several States.’” Humana Inc. v. Forsyth, 525 U.S. 299, 306, 119
S. Ct. 710, 142 L. Ed.2d 753 (1999) (quoting 15 U.S.C. § 1011). Thus, ever since
passage of the McCarran-Ferguson Act, the insurance business has continued to be
regulated almost exclusively by the states.
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 23 of 78
Page 24 of 78
and commercial warfare between states began . . . [E]ach
state would legislate according to its estimate of its own
interests, the importance of its own products, and the
local advantages or disadvantages of its position in a
political or commercial view. This came to threaten at
once the peace and safety of the Union. The sole purpose
for which Virginia initiated the movement which
ultimately produced the Constitution was to take into
consideration the trade of the United States; to examine
the relative situations and trade of the said states; to
consider how far a uniform system in their commercial
regulation may be necessary to their common interest and
their permanent harmony and for that purpose the
General Assembly of Virginia in January of 1786 named
commissioners and proposed their meeting with those
from other states.
The desire of the Forefathers to federalize regulation of
foreign and interstate commerce stands in sharp contrast
to their jealous preservation of power over their internal
affairs. No other federal power was so universally
assumed to be necessary, no other state power was so
readily relin[q]uished. There was no desire to authorize
federal interference with social conditions or legal
institutions of the states. Even the Bill of Rights
amendments were framed only as a limitation upon the
powers of Congress. The states were quite content with
their several and diverse controls over most matters but,
as Madison has indicated, “want of a general power over
Commerce led to an exercise of this power separately, by
the States, which not only proved abortive, but
engendered rival, conflicting and angry regulations.”
H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 533-34, 69 S. Ct. 657, 93 L.
Ed. 865 (1949) (citations and quotations omitted). The foregoing is a frequently
repeated history lesson from the Supreme Court. In his concurring opinion in the
landmark 1824 case of Gibbons v. Ogden, supra, for example, Justice Johnson
provided a similar historical summary:
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 24 of 78
Page 25 of 78
For a century the States [as British colonies] had
submitted, with murmurs, to the commercial restrictions
imposed by the parent State; and now, finding
themselves in the unlimited possession of those powers
over their own commerce, which they had so long been
deprived of, and so earnestly coveted, that selfish
principle which, well controlled, is so salutary, and which,
unrestricted, is so unjust and tyrannical, guided by
inexperience and jealousy, began to show itself in
iniquitous laws and impolitic measures, from which grew
up a conflict of commercial regulations, destructive to the
harmony of the States, and fatal to their commercial
interests abroad.
This was the immediate cause, that led to the forming of
a convention.
Gibbons, supra, 22 U.S. at 224. In the Supreme Court’s 1888 decision in Kidd v.
Pearson, Justice Lamar noted that “it is a matter of public history that the object of
vesting in congress the power to regulate commerce . . . among the several states
was to insure uniformity for regulation against conflicting and discriminatory state
legislation.” See Kidd, supra, 128 U.S. at 21. More recently, Justice Stevens has
advised that when “construing the scope of the power granted to Congress by the
Commerce Clause . . . [i]t is important to remember that this clause was the
Framers’ response to the central problem that gave rise to the Constitution itself,”
that is, the Founders had “‘set out only to find a way to reduce trade restrictions.’”
See EEOC v. Wyoming, 460 U.S. 226, 244-45, 103 S. Ct. 1054, 75 L. Ed. 2d 18
(1983) (Stevens, J., concurring). The foregoing history is so “widely shared,” [see
id. at 245 n.1], that Constitutional scholars with opposing views on the Commerce
Clause readily agree on this point. Compare Stern, supra, at 1344 (“There can be
no question, of course, that in 1787 [when] the framers and ratifiers of the
Constitution . . . considered the need for regulating ‘commerce with foreign nations
and among the several states,’ they were thinking only in terms of . . . the removal
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 25 of 78
Page 26 of 78
of barriers obstructing the physical movements of goods across state lines.”), with
Bork & Troy, supra, at 858, 865 (“One thing is certain: the Founders turned to a
federal commerce power to carve stability out of this commercial anarchy” and
“keep the States from treating one another as hostile foreign powers”; in short,
“the Clause was drafted to grant Congress the power to craft a coherent national
trade policy, to restore and maintain viable trade among the states, and to prevent
interstate war.”). Hamilton and Madison both shared this concern that conflicting
and discriminatory state trade legislation “would naturally lead to outrages, and
these to reprisals and wars.” The Federalist No. 7, at 37 (Hamilton); see also The
Federalist No. 42, at 282 (Madison) (referencing the “unceasing animosities” and
“serious interruptions of the public tranquility” that would inevitably flow from the
lack of national commerce power).
To acknowledge the foregoing historical facts is not necessarily to say that
the power under the Commerce Clause was intended to (and must) remain limited
to the trade or exchange of goods, and be confined to the task of eliminating trade
barriers erected by and between the states.12 The drafters of the Constitution were
aware that they were preparing an instrument for the ages, not one suited only for
the exigencies of that particular time. See, e.g., McCulloch, supra, 17 U.S. at 415
(the Constitution was “intended to endure for ages to come” and “to be adapted to
the various crises of human affairs”) (Marshall, C.J.); Weems v. United States, 217
U.S. 349, 373, 30 S. Ct. 544, 54 L. Ed. 793 (1910) (explaining that constitutions
12 Although there is some evidence that is exactly what Madison, at least,
had intended. In one of his letters, he wrote that the Commerce Clause “‘grew out
of the abuse of the power by the importing States in taxing the non-importing, and
was intended as a negative and preventive provision against injustice among the
States themselves, rather than as a power to be used for the positive purposes of
the General Government.’” West Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 193
n.9, 114 S. Ct. 2205, 129 L. Ed. 2d 157 (1994) (quoting 3 M. Farrand, Records of
the Federal Convention of 1787, p. 478 (1911)).
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 26 of 78
Page 27 of 78
“are not ephemeral enactments, designed to meet passing occasions,” but rather
are “designed to approach immortality as nearly as human institutions can approach
it . . . [and], therefore, our contemplation cannot be only of what has been, but of
what may be”); accord New York v. United States, 505 U.S. 144, 157, 112 S. Ct.
2408, 120 L. Ed. 2d 120 (1992) (the Constitution was “phrased in language broad
enough to allow for the expansion” of federal power and allow “enormous changes
in the nature of government”). As Hamilton explained:
Constitutions of civil government are not to be framed
upon a calculation of existing exigencies, but upon a
combination of these with the probable exigencies of
ages, according to the natural and tried course of human
affairs. Nothing, therefore, can be more fallacious than to
infer the extent of any power, proper to be lodged in the
national government, from an estimate of its immediate
necessities. There ought to be a capacity to provide for
future contingencies as they may happen; and as these
are illimitable in their nature, it is impossible safely to limit
that capacity.
The Federalist No. 34, at 210-11 (emphasis in original).
Thus, the exercise and interpretation of the commerce power has evolved
and undergone a significant change “as the needs of a dynamic and constantly
expanding national economy have changed.” See EEOC, supra, 460 U.S. at 246
(Stevens, J., concurring). But, I will begin at the beginning.
(b) Evolution of Commerce Clause Jurisprudence
Some have maintained that the Commerce Clause power began as, and was
intended to remain, a narrow and limited one. See, e.g., Raoul Berger, Federalism:
The Founders Design (1987) (arguing that the founders sought to create a limited
federal government whose power, including the commerce power, was narrow in
scope); Barnett, supra, at 146 (concluding that “the most persuasive evidence of
original meaning . . . strongly supports [the] narrow interpretation of Congress’s
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 27 of 78
Page 28 of 78
power [under the Commerce Clause]”). Despite evidence to support this position, it
is difficult to prove decisively because for the first century of our history the Clause
was seldom invoked by Congress (if at all), and then only negatively to prevent the
interference with commerce by individual states. This necessarily means that there
is a lack of early congressional and judicial pronouncements on the subject. This, in
turn, makes it harder to conclusively determine how far the commerce power was
originally intended to reach. It was not until 1824 (more than three decades after
ratification) that the Supreme Court was first called upon in Gibbons v. Ogden to
consider the commerce power. By that time, it would appear that the Clause was
given a rather expansive treatment by Chief Justice Marshall, who wrote:
[The commerce power] is the power to regulate; that is,
to prescribe the rule by which commerce is to be
governed. This power, like all others vested in Congress,
is complete in itself, may be exercised to its utmost
extent, and acknowledges no limitations, other than are
prescribed in the constitution . . . If, as has always been
understood, the sovereignty of Congress, though limited
to specified objects, is plenary as to those objects, the
power over commerce with foreign nations, and among
the several States, is vested in Congress as absolutely as
it would be in a single government, having in its
constitution the same restrictions on the exercise of the
power as are found in the constitution of the United
States. The wisdom and the discretion of Congress, their
identity with the people, and the influence which their
constituents possess at elections, are, in this, as in many
other instances . . . the sole restraints on which they
have relied, to secure them from its abuse.
Gibbons, supra, 22 U.S. at 75. Notwithstanding this seemingly broad interpretation
of Congress’ power to negate New York’s assertion of authority over its navigable
waters, it was not until 1887, one hundred years after ratification, that Congress
first exercised its power to affirmatively and positively regulate commerce among
the states. And when it did, the Supreme Court at that time rejected the broad
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 28 of 78
Page 29 of 78
conception of commerce and the power of Congress to regulate the economy was
sharply restricted. See, e.g., Kidd v. Pearson, supra (1888). Thus, for most of the
first century and a half of Constitutional government (with the possible exception
of Gibbons v. Ogden in 1824), the Clause was narrowly construed and given
“miserly construction.” See EEOC, supra, 460 U.S. at 246 (Stevens, J., concurring)
(citing Kidd, supra, 128 U.S. at 20-21 (manufacturing not subject to the commerce
power of Congress); United States v. E.C. Knight Co., 156 U.S. 1, 12-16, 15 S.
Ct. 249, 39 L. Ed. 325 (1895) (manufacturing monopoly not subject to commerce
power); Adair v. United States, 208 U.S. 161, 178-179, 28 S. Ct. 277, 52 L. Ed.
436 (1908) (connection between interstate commerce and membership in a labor
union insufficient to authorize Congress to make it a crime for an interstate carrier
to fire employee for his union membership); Hammer v. Dagenhart, 247 U.S. 251,
276, 38 S. Ct. 529, 62 L. Ed. 1101 (1918) (Congress without power to prohibit
the interstate transportation of goods produced with child labor); Carter v. Carter
Coal Co., 298 U.S. 238, 298, 308-10, 56 S. Ct. 855, 80 L. Ed. 1160 (1936)
(holding that commerce power does not extend to the regulation of wages, hours,
and working conditions of coal miners; defining commerce --- consistent with the
original understanding of the term --- as “the equivalent of the phrase ‘intercourse
for the purposes of trade’”)).
For example, in A.L.A. Schechter Poultry Corp. v. United States, 295 U.S.
495, 55 S. Ct. 837, 79 L. Ed. 1570 (1935), a case well known to first year law
students, the Court invalidated regulations fixing employee hours and wages in an
intrastate business because the activity being regulated only related to interstate
commerce “indirectly.” The Supreme Court characterized the distinction between
“direct” and “indirect” effects on interstate commerce as “a fundamental one,
essential to the maintenance of our constitutional system,” for without it “there
would be virtually no limit to the federal power and for all practical purposes we
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 29 of 78
Page 30 of 78
should have a completely centralized government.” Id. at 548.
But, everything changed in 1937, beginning with the first of three significant
New Deal cases. In N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct.
615, 81 L. Ed. 893 (1937), the Supreme Court, after recognizing the well known
principle “that acts which directly burden or obstruct interstate or foreign
commerce, or its free flow, are within the reach of the congressional power” [see
id. at 31], held for the first time that Congress could also regulate purely intrastate
activities that could be said to have a “substantial effect” on interstate commerce.
“Although activities may be intrastate in character when separately considered, if
they have such a close and substantial relation to interstate commerce that their
control is essential or appropriate to protect that commerce from burdens and
obstructions, Congress cannot be denied the power to exercise that control.” Id. at
37. The question was now “the effect upon interstate commerce of the [intrastate
activity] involved.” Id. at 40 (emphasis added).
Four years later, in United States v. Darby, 312 U.S. 100, 61 S. Ct. 451, 85
L. Ed. 609 (1941), the Supreme Court overruled Hammer v. Dagenhart, supra. In
upholding the wage and hour requirements in the Fair Labor Standards Act, and its
suppression of substandard labor conditions, the Court reaffirmed that with respect
to intrastate “transactions” and “activities” having a substantial effect on interstate
commerce, Congress may regulate them without doing violence to the Constitution.
See id. at 118-23.
And then came Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L. Ed.
122 (1942), which, until recently, was widely considered the most far-reaching
expansion of Commerce Clause regulatory authority over intrastate activity. At
issue in Wickard were amendments to the Agricultural Adjustment Act of 1938
that set acreage allotments for wheat farmers in an effort to control supply and
avoid surpluses that could result in abnormally low wheat prices. The plaintiff in
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 30 of 78
Page 31 of 78
that case, Roscoe Filburn, owned a small farm on which he raised and harvested
wheat, among other things. When he exceeded his allotment by 12 acres (which
yielded 239 bushels of wheat), he was penalized under the statute. Although the
intended disposition of the crop involved in the case was not “expressly stated,”
[id. at 114], the Supreme Court assumed and analyzed the issue as though the
excess wheat was “not intended in any part for commerce but wholly for
consumption on the farm.” See id. at 118. Even though production of such wheat
“may not be regarded as commerce” in the strictest sense of the word, [see id. at
125], consumption on the farm satisfied needs that would (theoretically, at least)
be otherwise filled by another purchase or commercial transaction. See id. at 128
(explaining that homegrown wheat “supplies a need of the man who grew it which
would otherwise be reflected by purchases in the open market [and] in this sense
competes with wheat in commerce”). In holding that Congress had power under
the Commerce Clause to regulate production intended for personal consumption,
the Supreme Court stated:
[E]ven if appellee’s activity be local and though it may not
be regarded as commerce, it may still, whatever its
nature, be reached by Congress if it exerts a substantial
economic effect on interstate commerce and this
irrespective of whether such effect is what might at some
earlier time have been defined as “direct” or “indirect.”
* * *
That appellee’s own contribution to the demand for
wheat may be trivial by itself is not enough to remove
him from the scope of federal regulation where, as here,
his contribution, taken together with that of many others
similarly situated, is far from trivial.
Id. at 125, 127-28. The latter statement is commonly known and described as the
“aggregation principle.” It allows Congress under the Commerce Clause to reach a
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 31 of 78
Page 32 of 78
“class of activities” that have a substantial impact on interstate commerce when
those activities are aggregated with all similar and related activities --- even though
the activities within the class may be themselves trivial and insignificant. See, e.g.,
Maryland v. Wirtz, 392 U.S. 183, 192-93, 196 n.27, 88 S. Ct. 2017, 20 L. Ed. 2d
1020 (1968) (any claim that reviewing courts have the power to excise, as trivial,
individual activity within a broader class of activities “has been put entirely to rest”
as the “de minimis character of individual instances arising under [the] statute is of
no consequence”). To illustrate this principle, as applied in Wickard, even though
Filburn’s 239 bushels were presumably for his own consumption and seed, and did
not significantly impact interstate commerce, if every farmer in the country did the
same thing, the aggregate impact on commerce would be cumulatively substantial.
Together, Jones & Laughlin Steel, Darby, and Wickard either “ushered in” a
new era of Commerce Clause jurisprudence “that greatly expanded the previously
defined authority of Congress under that Clause” [Lopez, supra, 514 U.S. at 556],
or they merely “restored” the “broader view of the Commerce Clause announced
by Chief Justice Marshall.” Perez, supra, 402 U.S. at 151. Regardless of whether
the cases represented a new era or simply a restoration of the old, it seemed that
from that point forward congressional action under the Commerce Clause was to
be given virtually insurmountable deference. See Kenneth Klukowski, Citizen Gun
Rights: Incorporating the Second Amendment Through the Privileges or Immunities
Clause, 39 N.M. L. Rev. 195, 232-33 (2009) (noting that in these New Deal cases
“the Court read the Commerce Clause so broadly that it is a bold statement to say
that the provision even nominally constrained federal action”). And, indeed, from
the New Deal period through the next five decades, not a single federal legislative
enactment was struck down as exceeding Congress’ power under the Commerce
Clause power --- until Lopez in 1995.
In United States v. Lopez the Supreme Court considered the Constitutionality
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 32 of 78
Page 33 of 78
of the Gun Free School Zones Act of 1990, which criminalized the possession of a
firearm in a school zone. In holding that the statute exceeded Congress’ authority
under the Commerce Clause, the Supreme Court began by recognizing the “first
principles” behind the limitations on federal power as set forth in the Constitution.
See supra, 514 U.S. at 552. Then, after detailing the history and transformation of
Commerce Clause jurisprudence --- from Gibbons, to A.L.A. Schechter Poultry, and
up through Wickard --- the Court observed that even in cases which had interpreted
the Commerce Clause more expansively, every decision to date had recognized that
the power granted by the Clause is necessarily “subject to outer limits” which, if
not recognized and respected, could lead to federal action that would “effectually
obliterate the distinction between what is national and what is local and create a
completely centralized government.” See generally id. at 553-57. Consistent with
those limits, the Lopez Court stated “we have identified three broad categories of
activity that Congress may regulate under its commerce power.” See id. at 558
(emphasis added). The “substantially affects” category was the one at issue there,
and in holding that the statute did not pass muster thereunder, the Supreme Court
focused on four considerations: (i) the activity being regulated (guns near schools)
was not economic in nature; (ii) the statute did not contain jurisdictionally limiting
language; (iii) Congress did not make any formal findings concerning the effect of
the regulated activity on commerce; and (iv) the connection between that activity
and its effect on commerce was attenuated. See generally id. at 559-67.
As for the fourth consideration, the Court impliedly conceded the claims by
the government and the dissent that: (1) gun-related violence is a serious national
problem with substantial costs that are spread throughout the population; (2) such
violence has adverse effects on classroom learning (which can result in decreased
productivity) and discourages traveling into areas felt to be unsafe; all of which, in
turn, (3) represents a substantial threat to interstate commerce. The Lopez majority
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 33 of 78
Page 34 of 78
made a point to “pause to consider the implications” of such arguments, however.
See id. at 563-65. It found that if such theories were sufficient to justify regulation
under the Commerce clause (even though their underlying logic and truth were not
questioned), “it is difficult to perceive any limitation on federal power” and “we are
hard pressed to posit any activity by an individual that Congress is without power
to regulate.” See id. at 564. To accept such arguments and uphold the statute, the
majority concluded, would require the Court:
. . . to pile inference upon inference in a manner that
would bid fair to convert congressional authority under
the Commerce Clause to a general police power of the
sort retained by the States. Admittedly, some of our prior
cases have taken long steps down that road, giving great
deference to congressional action. The broad language in
these opinions has suggested the possibility of additional
expansion, but we decline here to proceed any further. To
do so would require us to conclude that the
Constitution's enumeration of powers does not
presuppose something not enumerated, and that there
never will be a distinction between what is truly national
and what is truly local. This we are unwilling to do.
Id. at 567-68; see also id. at 578, 580 (explaining that it is the Court’s duty to
“recognize meaningful limits on the commerce power” and intervene if Congress
“has tipped the scales too far” as federal balance “is too essential a part of our
constitutional structure and plays too vital a role in securing freedom”) (Kennedy,
J., concurring) .
The next significant Commerce Clause case to be decided by the Supreme
Court was the 2000 case of United States v. Morrison, supra, 529 U.S. at 598,
which involved a challenge to the Violence Against Women Act of 1994. The
government argued in that case --- similar to what it did in Lopez --- that Congress
could regulate gender-motivated violence based on a syllogistic theory that victims
of such violence are deterred from traveling and engaging in interstate business or
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 34 of 78
Page 35 of 78
employment; they are thus less productive (and incur increased medical and other
costs); all of which, in turn, substantially affects interstate commerce. See id. at
615. The Court began its analysis by recognizing the foundational principle that the
power of the federal government is “defined and limited” and therefore: “Every law
enacted by Congress must be based on one or more of its powers enumerated in
the Constitution.” See id. at 607. It emphasized that while the legal analysis of the
Commerce Clause “has changed as our Nation has developed,” which has resulted
in Congress having “considerably greater latitude in regulating conduct and
transactions under the Commerce Clause than our previous case law permitted,”
authority under the Clause “is not without effective bounds.” See id. at 607-08.
The Court then looked to the four “significant considerations” that were identified
in Lopez and found that, “[w]ith these principles underlying our Commerce Clause
jurisprudence as reference points, the proper resolution of the present cases is
clear.” See id. at 610-13. First, the statute at issue in Morrison did not regulate
economic activity:
Gender-motivated crimes of violence are not, in any sense
of the phrase, economic activity. While we need not
adopt a categorical rule against aggregating the effects of
any noneconomic activity in order to decide these cases,
thus far in our Nation's history our cases have upheld
Commerce Clause regulation of intrastate activity only
where that activity is economic in nature.
Id. at 613. Further, the statute did not contain jurisdictionally limiting language; and
while it was supported, in contrast to Lopez, with numerous congressional findings
regarding the personal, familial, and economic impact of gender-motivated violence,
those findings were insufficient to sustain the legislation as they relied on the same
“method of reasoning that we have already rejected as unworkable if we are to
maintain the Constitution’s enumeration of powers.” Id. at 615. In other words, it
would require the Court “to pile inference upon inference,” and, in the process, run
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 35 of 78
Page 36 of 78
the risk of “completely obliterat[ing] the Constitution’s distinction between national
and local authority.” See id.
In light of the circumscriptial rulings in Lopez and Morrison, many were
surprised by the Supreme Court’s subsequent decision in Gonzales v. Raich, 545
U.S. 1, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005), which was not only seen as a
return to the more expansive Commerce Clause jurisprudence [see, e.g., Matthew
Farley, Challenging Supremacy: Virginia’s Response to the Patient Protection and
Affordable Care Act, 45 U. Rich. L. Rev. 37, 65 (2010)], but was, in fact, viewed
by some as even going beyond and “displacing” Wickard as the most far-reaching
of all Commerce Clause cases. See Douglas W. Kmiec, Gonzales v. Raich: Wickard
v. Filburn Displaced, 2005 Cato Sup. Ct. Rev. 71 (2005).
At issue in Raich was whether Congress had authority under the Commerce
and Necessary and Proper Clauses to prohibit, via the Controlled Substances Act,
“the local cultivation and use of marijuana in compliance with California law.” See
Raich, supra, 545 U.S. at 5. The marijuana at issue, which was being used by two
seriously ill women for medicinal purposes pursuant to state law, had been neither
bought nor sold and never crossed state lines. It was, and is, illegal in most states,
and does not have a legal free market in interstate commerce, the normal attribute
of any economic analysis. Nevertheless, the Supreme Court began its analysis by
stating: “Our case law firmly establishes Congress’ power to regulate purely local
activities that are part of an economic ‘class of activities’ that have a substantial
effect on interstate commerce.” Id. at 17. The Court found Wickard to be “striking”
in similarity and “of particular relevance” to the analysis as that case “establishes
that Congress can regulate purely intrastate activity that is not itself ‘commercial,’
in that it is not produced for sale, if it concludes that failure to regulate that class
of activity would undercut regulation of the interstate market in that commodity.”
Id. at 17-18. The Court held that Congress had a “rational basis” for finding that
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 36 of 78
Page 37 of 78
leaving home-consumed marijuana outside of federal control would affect the price
and market conditions for that commodity because, as was noted in Wickard, the
“production of the commodity meant for home consumption, be it wheat or
marijuana, has a substantial effect on supply and demand in the national market for
that commodity.” See id. at 19. Surprisingly, “[t]hat the market in Raich happened
to be an illegal one did not affect the Court’s analysis in the least.” Maxwell, supra,
446 F.3d at 1214.
The Eleventh Circuit has indicated that the distinguishing feature between
Raich and Wickard on the one hand, and Morrison and Lopez on the other, “was
the comprehensiveness of the economic component of the regulation.” Maxwell,
supra, 446 F.3d at 1214. The statute in Lopez, for example, was a brief, singlesubject
criminal statute that did not regulate any economic activity. By contrast,
the statute in Raich was a broader legislative scheme “at the opposite end of the
regulatory spectrum.“ Supra, 545 U.S. at 24. It was “a lengthy and detailed statute
creating a comprehensive framework for regulating the production, distribution, and
possession of [controlled substances],” which were “activities” the Supreme Court
determined to be “quintessentially economic” in nature. See id. at 24-25. The Court
reached this conclusion by “quite broadly defin[ing] ‘economics’ as ‘the production,
distribution, and consumption of commodities.’” See Maxwell, supra, 446 F.3d at
1215 n.4 (quoting Raich, supra, 545 U.S. at 25-26, in turn quoting Webster’s Third
New International Dictionary 720 (1966)).13
(c) Application of the Foregoing to the Facts of this Case
Unsurprisingly, the plaintiffs rely heavily on Lopez and Morrison in framing
13 In objecting to the majority’s use of this “broadest possible” definition,
Justice Thomas argued in dissent that “economics” is not defined as broadly in
other dictionaries, and “the majority does not explain why it selects a remarkably
expansive 40-year-old definition.” Raich, supra, 545 U.S. at 69 and n.7 (Thomas,
J., dissenting).
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 37 of 78
Page 38 of 78
their arguments, while the defendants, of course, look principally to Wickard and
Raich. These cases (along with the others discussed above) all have something to
add to the discussion. However, while they frame the analysis, and are important
from a historical perspective, they do not by themselves resolve this case. That is
because, as Congress’ attorneys in the Congressional Research Service (“CRS”)
and Congressional Budget Office (“CBO”) advised long before the Act was passed
into law, the notion of Congress having the power under the Commerce Clause to
directly impose an individual mandate to purchase health care insurance is “novel”
and “unprecedented.” See Jennifer Staman & Cynthia Brougher, Congressional
Research Service, Requiring Individuals to Obtain Health Insurance: A Constitutional
Analysis, July 24, 2009, at 3, 6 (“whether Congress can use its Commerce Clause
authority to require a person to buy a good or a service” raises a “novel issue” and
“most challenging question”) (“CRS Analysis”); Congressional Budget Office
Memorandum, The Budgetary Treatment of an Individual Mandate to Buy Health
Insurance, August 1994 (“A mandate requiring all individuals to purchase health
insurance would be an unprecedented form of federal action.”) (“CBO Analysis”).
Never before has Congress required that everyone buy a product from a private
company (essentially for life) just for being alive and residing in the United States.14
14 The individual mandate differs from the regulations in Wickard and Raich,
for example, in that the individuals being regulated in those cases were engaged in
an activity (regardless of whether it could readily be deemed interstate commerce
in itself) and each had the choice to discontinue that activity and avoid penalty.
See, e.g., Wickard v. Filburn, 317 U.S. 111, 130, 63 S. Ct. 82, 87 L. Ed. 122
(1942) (noting Congress “gave the farmer a choice” of several options under the
statute). Here, people have no choice but to buy insurance or be penalized. And
their freedom is actually more restricted as they do not even have a choice as to
the minimum level or type of insurance to buy because Congress established the
floor. A single twenty-year old man or woman who only needs and wants major
medical or catastrophic coverage, for example, is precluded from buying such a
policy under the Act.
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 38 of 78
Page 39 of 78
As I explained in my earlier order, the fact that legislation is unprecedented
does not by itself render it unconstitutional. To the contrary, all federal legislation
carries with it a “presumption of constitutionality.” Morrison, supra, 529 U.S. at
607. However, the presumption is arguably weakened, and an “absence of power”
might reasonably be inferred where --- as here --- “earlier Congresses avoided use
of this highly attractive power.” Printz v. United States, 521 U.S. 898, 905, 908,
117 S. Ct. 2365, 138 L. Ed. 2d 914 (1997); id. at 907-08 (“the utter lack of
statutes imposing obligations [like the one at issue in that case] (notwithstanding
the attractiveness of that course to Congress), suggests an assumed absence of
such power”) (emphasis in original); id. at 918 (“almost two centuries of apparent
congressional avoidance of the practice [at issue] tends to negate the existence of
the congressional power asserted here”).15 The mere fact that the defendants have
tried to analogize the individual mandate to things like jury service, participation in
the census, eminent domain proceedings, forced exchange of gold bullion for paper
currency under the Gold Clause Cases, and required service in a “posse” under the
Judiciary Act of 1789 (all of which are obviously distinguishable) only underscores
and highlights its unprecedented nature.
However, unprecedented or not, I will assume that the individual mandate
can be Constitutional under the Commerce Clause and will analyze it accordingly.
This analysis requires the resolution of two essential questions.
(i) Is Activity Required Under the Commerce Clause?
The threshold question that must be addressed is whether activity is required
before Congress can exercise its power under the Commerce Clause. As previously
15 Indeed, as the plaintiffs have persuasively noted, not even in the context
of insurance under the National Flood Insurance Program did Congress mandate
that all homeowners buy flood insurance directly from a private company. See Pl.
Opp. at 26-27.
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 39 of 78
Page 40 of 78
discussed, Commerce Clause jurisprudence has “‘taken some turns,’” [see Lopez,
supra, 514 U.S. at 579 (Kennedy, J., concurring)], and contracted and expanded
(and contracted and expanded again) during our nation’s development. But, in every
one of the cases --- in both the contractive and expansive --- there has always been
clear and inarguable activity, from exerting control over and using navigable waters
(Gibbons) to growing or consuming marijuana (Raich).16 In all the cases discussed
above, the Supreme Court was called upon to decide different issues (e.g., whether
commerce encompassed navigation; whether it included manufacture and
agriculture or was limited to trade or exchange of goods; whether the activity at
issue was interstate or intrastate and had a direct or indirect effect on commerce;
whether that effect was substantial; whether the activity was economic or noneconomic;
and whether it was part of a single-subject statute or a necessary and
essential component of a broader comprehensive scheme), but it has never been
called upon to consider if “activity” is required. On this point at least, the district
courts that have reached opposite conclusions on the individual mandate agree.
Compare Thomas More Law Center, supra, 720 F. Supp. 2d at 893 (noting that the
Supreme Court “has never needed to address the activity/inactivity distinction
advanced by plaintiffs because in every Commerce Clause case presented thus far,
there has been some sort of activity”; then proceeding to uphold the individual
mandate), with Virginia, supra, 728 F. Supp. 2d at 781 (noting that “every
application of Commerce Clause power found to be constitutionally sound by the
16 The defendants cite to Raich for the proposition that Congress may reach
“even wholly intrastate, non-commercial matters when it concludes that the failure
to do so would undercut a larger program regulating interstate commerce.” See
Def. Mem. at 13. By paraphrasing Raich here rather than quoting from the decision
the defendants have attempted to obscure the importance of “activity,” for the
cited portion, and Justice Scalia’s concurrence (on which the defendants also rely),
do not talk at all of “matters” --- either commercial or not. They only mention (and
often) “activities.”
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 40 of 78
Page 41 of 78
Supreme Court involved some form of action, transaction, or deed placed in motion
by an individual or legal entity”; then proceeding to strike down the individual
mandate).
The defendants contend, however, that despite the inarguable presence of
activity in every Supreme Court case to date, activity is not required under the
Commerce Clause. See Def. Mem. at 31 (maintaining that “there is no ‘activity’
clause in the constitution”). In fact, they go so far as to suggest that to impose
such a requirement would be bold and radical. According to the defendants,
because the Supreme Court has never identified a distinction between activity and
inactivity as a limitation on Congress’ commerce power, to hold otherwise would
“break new legal ground” and be “novel” and “unprecedented.” See Def. Opp. at 1,
2, 16. First, it is interesting that the defendants --- apparently believing the best
defense is a good offense --- would use the words “novel” and “unprecedented”
since, as previously noted, those are the exact same words that the CRS and CBO
used to describe the individual mandate before it became law. Furthermore, there is
a simple and rather obvious reason why the Supreme Court has never distinguished
between activity and inactivity before: it has not been called upon to consider the
issue because, until now, Congress had never attempted to exercise its Commerce
Clause power in such a way before. See CBO Analysis (advising Congress during
the previous health care reform efforts in 1994 that “[t]he government has never
required people to buy any good or service as a condition of lawful residence in the
United States.”). In every Supreme Court case decided thus far, Congress was not
seeking to regulate under its commerce power something that could even arguably
be said to be “passive inactivity.”17
17 I note that in Gibbons v. Ogden, where Chief Justice Marshall “described
the Federal Commerce power with a breadth never yet exceeded” [Wickard, supra,
317 U.S. at 111], commerce was defined as “intercourse.” Even that word would
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 41 of 78
Page 42 of 78
It would be a radical departure from existing case law to hold that Congress
can regulate inactivity under the Commerce Clause. If it has the power to compel
an otherwise passive individual into a commercial transaction with a third party
merely by asserting --- as was done in the Act --- that compelling the actual
transaction is itself “commercial and economic in nature, and substantially affects
interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that
Congress could do almost anything it wanted. It is difficult to imagine that a nation
which began, at least in part, as the result of opposition to a British mandate giving
the East India Company a monopoly and imposing a nominal tax on all tea sold in
America would have set out to create a government with the power to force people
to buy tea in the first place. If Congress can penalize a passive individual for failing
to engage in commerce, the enumeration of powers in the Constitution would have
been in vain for it would be “difficult to perceive any limitation on federal power”
[Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only.
Surely this is not what the Founding Fathers could have intended. See id. at 592
(quoting Hamilton at the New York Convention that there would be just cause to
reject the Constitution if it would allow the federal government to “penetrate the
recesses of domestic life, and control, in all respects, the private conduct of
individuals”) (Thomas, J., concurring). In Lopez, the Supreme Court struck down
the Gun Free School Zones Act of 1990 after stating that, if the statute were to be
seem to carry with it an implicit presumption of at least some sort of preexisting
dealing between people or entities. See 1 Samuel Johnson, A Dictionary of the
English Language (4th ed. 1773) (defining “intercourse” as “Commerce; exchange”
and “Communication”). Furthermore, as one of the amici notes in their brief, the
word “regulate” in the Commerce Clause itself would also appear to presuppose
action upon some object or activity that is already extant (see doc. 121 at 4 n.1,
citing Samuel Johnson’s dictionary defining “regulate” as “to adjust by rule or
method” or “to direct”). Thus, a regulator “comes to an existing phenomenon and
orders it.” Id.
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 42 of 78
Page 43 of 78
upheld, “we are hard pressed to posit any activity by an individual that Congress is
without power to regulate.” See id. at 564. (emphasis added). If some type of
already-existing activity or undertaking were not considered to be a prerequisite to
the exercise of commerce power, we would go beyond the concern articulated in
Lopez for it would be virtually impossible to posit anything that Congress would be
without power to regulate.
As previously noted, the Supreme Court has summarized and defined the
current state of the law under the Commerce Clause, and it has uniformly and
consistently declared that it applies to “three broad categories of activity.” Lopez,
supra, 514 U.S. at 558 (emphasis added); accord Morrison, supra, 529 U.S. at
608. It has further described the third category as “the power to regulate those
activities having a substantial relation to interstate commerce.” Lopez, supra, 514
U.S. at 558-59 (emphasis added); accord Morrison, supra, 529 U.S. at 609; see
also Raich, supra, 545 U.S. at 17; Perez, 402 U.S. at 150; Wickard, supra, 317
U.S. at 124; Darby, supra, 312 U.S. at 119-20; Jones & Laughlin Steel, supra, 301
U.S. at 37. Without doubt, existing case law thus extends only to those “activities”
that have a substantial relationship to, or substantially affect, interstate commerce.
I am required to interpret this law as the Supreme Court presently defines it. Only
the Supreme Court can redefine it or expand it further --- a point implicitly made by
one of the defendants’ own cited authorities. See Stern, supra, at 1363 (stating
that the Supreme Court had at one point in time only talked about “movement” of
goods across state lines under the Commerce Clause because it was necessary to
decide those earlier cases and there had “been no need for a broader definition” of
commerce; going on to opine that “it would seem timely that the Supreme Court”
expand the definition, as “the time has now arrived for the [Supreme] Court to cut
loose from the ‘old’ approach and to select the ‘new’ one”) (emphasis added).
Having found that “activity” is an indispensable part the Commerce Clause
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 43 of 78
Page 44 of 78
analysis (at least as currently understood, defined, and applied in Supreme Court
case law), the Constitutionality of the individual mandate will turn on whether the
failure to buy health insurance is “activity.”
(ii) Is the Failure to Purchase Health Insurance “Activity”?
Preliminarily, based solely on a plain reading of the Act itself (and a common
sense interpretation of the word “activity” and its absence), I must agree with the
plaintiffs’ contention that the individual mandate regulates inactivity. Section 1501
states in relevant part: “If an applicable individual fails to [buy health insurance],
there is hereby imposed a penalty.” By its very own terms, therefore, the statute
applies to a person who does not buy the government-approved insurance; that is,
a person who “fails” to act pursuant to the congressional dictate. In fact, prior to
final passage of the Act, CRS attorneys advised Congress that it was “unclear” if
the individual mandate had “solid constitutional foundation” specifically because:
One could argue that while regulation of the health
insurance industry or the health care system could be
considered economic activity, regulating a choice to
purchase health insurance is not. It may also be
questioned whether a requirement to purchase health
insurance is really a regulation of an economic activity or
enterprise, if individuals who would be required to
purchase health insurance are not, but for this regulation,
a part of the health insurance market. In general,
Congress has used its authority under the Commerce
Clause to regulate individuals, employers, and others who
voluntarily take part in some type of economic activity.
While in Wickard and Raich, the individuals were
participating in their own home activities (i.e., producing
wheat for home consumption and cultivating marijuana
for personal use), they were acting of their own volition,
and this activity was determined to be economic in nature
and affected interstate commerce. However, [the
individual mandate] could be imposed on some individuals
who engage in virtually no economic activity whatsoever.
This is a novel issue: whether . . . this type of required
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 44 of 78
Page 45 of 78
participation can be considered economic activity.
CRS Analysis, supra, at 3, 6 (emphasis added).
The defendants insist that the uninsured are active. In fact, they even go so
far as to make the claim --- which the plaintiffs call “absurd” --- that going without
health insurance constitutes “economic activity to an even greater extent than the
plaintiffs in Wickard or Raich.” See Def. Mem. at 29. They offer two (somewhat
overlapping) arguments why the appearance of inactivity here is just an “illusion.”
(iii) The Purported “Uniqueness” of the Health Care Market
The defendants contend that there are three unique elements of the health
care market which, when viewed cumulatively and in combination, belie the claim
that the uninsured are inactive.18 First, as living and breathing human beings who
are always susceptible to sudden and unpredictable illness and injury, no one can
“opt out” of the health care market. Second, if and when health services are
sought, hospitals are required by law to provide care, regardless of inability to pay.
And third, if the costs incurred cannot be paid (which they frequently cannot, given
the high cost of medical care), they are passed along (cost-shifted) to third parties,
which has economic implications for everyone. Congress found that the uninsured
received approximately $43 billion in “uncompensated care” in 2008 alone. These
three things, according to the defendants and various health care industry experts
and scholars on whom they rely, are “replicated in no other market” and defeat the
18 During oral argument, the plaintiffs opposed defining the relevant market
broadly as one for health care, insisting that the only relevant market for purposes
of analyzing the individual mandate is the more specific health insurance market. I
agree that the plaintiffs’ position is the more precise and accurate. Every market
can be broadly defined in a way that encompasses the specific characteristics one
seeks to reach or include. Nonetheless, I will consider and examine the defendants’
claim that the individual mandate is justifiable because the much broader “health
care market” is purportedly unique.
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 45 of 78
Page 46 of 78
argument that uninsured individuals are inactive.19
First, it is not at all clear whether or why the three allegedly unique factors
of the health care market are Constitutionally significant. What if only one of the
three factors identified by the defendants is present? After all, there are lots of
markets --- especially if defined broadly enough --- that people cannot “opt out” of.
For example, everyone must participate in the food market. Instead of attempting
to control wheat supply by regulating the acreage and amount of wheat a farmer
could grow as in Wickard, under this logic, Congress could more directly raise toolow
wheat prices merely by increasing demand through mandating that every adult
purchase and consume wheat bread daily, rationalized on the grounds that because
everyone must participate in the market for food, non-consumers of wheat bread
adversely affect prices in the wheat market. Or, as was discussed during oral
argument, Congress could require that people buy and consume broccoli at regular
intervals, not only because the required purchases will positively impact interstate
commerce, but also because people who eat healthier tend to be healthier, and are
thus more productive and put less of a strain on the health care system. Similarly,
because virtually no one can be divorced from the transportation market, Congress
could require that everyone above a certain income threshold buy a General Motors
automobile --- now partially government-owned --- because those who do not buy
GM cars (or those who buy foreign cars) are adversely impacting commerce and a
taxpayer-subsidized business.
I pause here to emphasize that the foregoing is not an irrelevant and fanciful
19 For example, in their briefs and during oral argument, the defendants cited
to and relied on the amicus brief filed by an impressive list of nearly forty economic
scholars, who have urged that these “three observations . . . do not exist in other
contexts” and establish that the uninsured are not inactive and passive bystanders,
but rather they “participate in the market for medical services and necessarily
affect the market for health insurance” (doc. 125 at 6-13).
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 46 of 78
Page 47 of 78
“parade of horribles.” Rather, these are some of the serious concerns implicated by
the individual mandate that are being discussed and debated by legal scholars. For
example, in the course of defending the Constitutionality of the individual mandate,
and responding to the same concerns identified above, often-cited law professor
and dean of the University of California Irvine School of Law Erwin Chemerinsky
has opined that although “what people choose to eat well might be regarded as a
personal liberty” (and thus unregulable), “Congress could use its commerce power
to require people to buy cars.” See ReasonTV, Wheat, Weed, and Obamacare: How
the Commerce Clause Made Congress All-Powerful, August 25, 2010, available at:
http://reason.tv/video/show/wheat-weed-and-obamacare-how-t. When I mentioned
this to the defendants’ attorney at oral argument, he allowed for the possibility that
“maybe Dean Chemerinsky is right.” See Tr. at 69. Therefore, the potential for this
assertion of power has received at least some theoretical consideration and has not
been ruled out as Constitutionally implausible.20
Or what if two of the purported “unique” factors --- inevitable participation
coupled with cost-shifting --- are present? For example, virtually no one can opt out
of the housing market (broadly defined) and a majority of people will at some point
20 There is perhaps a general assumption that it is “ridiculous” to believe that
Congress would do such a thing, even though it could. However, before Wickard
was decided, it is likely that most people (including legal scholars and judges)
would have thought it equally “ridiculous” to believe that Congress would one day
seek (and be permitted) to regulate (as interstate commerce) the amount of wheat
that a farmer grew on a small private farm for his personal consumption. In any
event, even if such an assumption is well-founded, “the limitation of congressional
authority is not solely a matter of legislative grace.” See Morrison, supra, 529 U.S.
at 616; see also id. at 616 n.7 (stating that legislative power is not limited only by
“the Legislature’s self-restraint”); cf. United States v. Stevens, --- U.S. ---, 130 S.
Ct. 1577, 1591, 176 L. Ed. 2d 435 (2010) (“[T]he [Constitution] protects against
the Government; it does not leave us at the mercy of noblesse oblige. We would
not uphold an unconstitutional statute merely because the Government promised to
use it responsibly.”).
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 47 of 78
Page 48 of 78
buy a home. The vast majority of those homes will be financed with a mortgage, a
large number of which (particularly in difficult economic times, as we have seen
most recently) will go into default, thereby cost-shifting billions of dollars to third
parties and the federal government. Should Congress thus have power under the
Commerce Clause to preemptively regulate and require individuals above a certain
income level to purchase a home financed with a mortgage (and secured with
mortgage guaranty insurance) in order to add stability to the housing and financial
markets (and to guard against the possibility of future cost-shifting because of a
defaulted mortgage), on the theory that most everyone is currently, or inevitably
one day will be, active in the housing market?
In alluding to these same general concerns, another court has observed that
requiring advance purchase of health insurance based on a future contingency that
will substantially affect commerce could also “apply to transportation, housing, or
nutritional decisions. This broad definition of the economic activity subject to
congressional regulation lacks logical limitation and is unsupported by Commerce
Clause jurisprudence.” See Virginia, supra, 728 F. Supp. 2d at 781. That the
defendants’ argument is “unsupported by Commerce Clause jurisprudence” can
perhaps best be seen by looking to Lopez. Although that case is distinct from this
one in some notable ways (e.g., it involved a brief, single-subject criminal statute
that did not contain detailed legislative findings), in the context of the defendants’
“health care is unique” argument, it is quite similar.
In Lopez, the majority was concerned that using the Commerce Clause to
regulate things such as possession of guns in school zones would “obliterate” the
distinction between what is national and what is local and effectively create a
centralized government that could potentially permit Congress to begin regulating
“any and all aspects” of our lives, including marriage, divorce, child custody, and
education. The dissent insisted that this concern was unfounded because the
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 48 of 78
Page 49 of 78
statute at issue was “aimed at curbing a particularly acute threat” of violence in
schools that had “singularly disruptive potential.” Supra, 514 U.S. at 624 (Breyer,
J., dissenting). Relying on “empirical evidence . . . documented by scholars,” the
dissent highlighted the link between education and the national economy and “the
special way in which guns and education are incompatible.” See id. The impact on
commerce, it was urged, derived from the unchallenged fact that “violent crime in
school zones has brought about a decline in the quality of education” which, in
turn, has “an adverse impact on interstate commerce.” See id. at 623 (citation and
quotation marks omitted). This was “the rare case, then, that a statute strikes at
conduct that (when considered in the abstract) seems so removed from commerce,
but which (practically speaking) has so significant an impact upon commerce.” Id.
(all emphasis added).
Two things become apparent after reading these arguments attempting to
justify extending Commerce Clause power to the legislation in that case, and the
majority opinion (which is the controlling precedent) rejecting those same
arguments. First, the contention that Commerce Clause power should be upheld
merely because the government and its experts or scholars claim that it is being
exercised to address a “particularly acute” problem that is “singular[ ],” “special,”
and “rare” --- that is to say “unique” --- will not by itself win the day. Uniqueness is
not an adequate limiting principle as every market problem is, at some level and in
some respects, unique. If Congress asserts power that exceeds its enumerated
powers, then it is unconstitutional, regardless of the purported uniqueness of the
context in which it is being asserted.
Second, and perhaps more significantly, under Lopez the causal link between
what is being regulated and its effect on interstate commerce cannot be attenuated
and require a court “to pile inference upon inference,” which is, in my view, exactly
what would be required to uphold the individual mandate. For example, in contrast
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 49 of 78
Page 50 of 78
to individuals who grow and consume marijuana or wheat (even in extremely small
amounts), the mere status of being without health insurance, in and of itself, has
absolutely no impact whatsoever on interstate commerce (not “slight,” “trivial,” or
“indirect,” but no impact whatsoever) --- at least not any more so than the status
of being without any particular good or service. If impact on interstate commerce
were to be expressed and calculated mathematically, the status of being uninsured
would necessarily be represented by zero. Of course, any other figure multiplied by
zero is also zero. Consequently, the impact must be zero, and of no effect on
interstate commerce. The uninsured can only be said to have a substantial effect
on interstate commerce in the manner as described by the defendants: (i) if they
get sick or injured; (ii) if they are still uninsured at that specific point in time; (iii) if
they seek medical care for that sickness or injury; (iv) if they are unable to pay for
the medical care received; and (v) if they are unable or unwilling to make payment
arrangements directly with the health care provider, or with assistance of family,
friends, and charitable groups, and the costs are thereafter shifted to others. In my
view, this is the sort of piling “inference upon inference” rejected in Lopez, supra,
514 U.S. at 567, and subsequently described in Morrison as “unworkable if we are
to maintain the Constitution’s enumeration of powers.” Supra, 529 U.S. at 615.21
I do not mean to suggest that these inferences are illogical or unreasonable
to draw. As did the majority in Lopez and Morrison, I do not dispute or question
their underlying existence. Indeed, while $43 billion in uncompensated care from
21 I suppose it is also possible to contend that being uninsured impacts the
economy because (regardless of whether the uninsured receive care that is costshifted
to others) people without insurance tend to be less healthy and thus less
productive. This seems to be the basis of one of Congress’ findings. See Act §
1501(a)(2)(E) (finding that the national economy “loses up to $207,000,000,000 a
year because of the poorer health and shorter lifespan of the uninsured”). However,
such a claim would be similar to the argument that was rejected in Morrison, i.e.,
that victims of gender-motivated violence also tend to be less productive.
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 50 of 78
Page 51 of 78
2008 was only 2% of national health care expenditures for that year, it is clearly a
large amount of money; and it demonstrates that a number of the uninsured are
taking the five sequential steps. And when they do, Congress plainly has the power
to regulate them at that time (or even at the time that they initially seek medical
care), a fact with which the plaintiffs agree. But, to cast the net wide enough to
reach everyone in the present, with the expectation that they will (or could) take
those steps in the future, goes beyond the existing “outer limits” of the Commerce
Clause and would, I believe, require inferential leaps of the sort rejected in Lopez.
To the extent the defendants have suggested it is “empty formalism” [Def. Mem.
at 16] to hold that the uninsured can be regulated at the time they seek or fail to
pay for medical care (but not before) the Supreme Court has explained:
Much of the Constitution is concerned with setting forth
the form of our government, and the courts have
traditionally invalidated measures deviating from that
form. The result may appear “formalistic” in a given case
to partisans of the measure at issue, because such
measures are typically the product of the era’s perceived
necessity. But the Constitution protects us from our own
best intentions: It divides power among sovereigns and
among branches of government precisely so that we may
resist the temptation to concentrate power in one
location as an expedient solution to the crisis of the day
. . . . [A] judiciary that licensed extra-constitutional
government with each issue of comparable gravity would,
in the long run, be far worse [than the crisis itself].
New York, supra, 505 U.S. at 187.
In short, the defendants’ argument that people without health insurance are
actively engaged in interstate commerce based on the purported “unique” features
of the much broader health care market is neither factually convincing nor legally
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 51 of 78
Page 52 of 78
supportable.22
(iv) The “Economic Decision” to Forego Health Insurance
The defendants next contend that the uninsured have made the calculated
decision to engage in market timing and try to finance their future medical needs
out-of-pocket rather than through insurance, and that this “economic decision” is
tantamount to activity. The plaintiffs respond by suggesting that it is “a remarkable
exaggeration of [the] rational aspects of human nature” to claim that the uninsured
(as a rule) make structured and calculated decisions to forego insurance and engage
in market timing, as opposed to simply not having it. See Tr. at 16 (“All we know
is some people do not have insurance and some people do”). The plaintiffs describe
the defendants’ argument on this point “Orwellian,” because they seek “to redefine
the inactivity of not having healthcare insurance as an affirmative economic activity
of ‘deciding’ not to buy insurance, or deciding now how to pay (or not to pay) for
potential future economic activity in the form of obtaining medical services.” See
Pl. Opp. at 10 (emphasis in original). This “economic decision” argument has been
accepted by two district courts, Liberty Univ., Inc., supra, 2010 WL 4860299, at
*15; Thomas More Law Center, supra, 720 F. Supp. 2d at 893-94. For example, in
Liberty University, the District Court for the Western District of Virginia stated that
“by choosing to forego insurance, Plaintiffs are making an economic decision to try
to pay for health care services later, out of pocket, rather than now, through the
purchase of insurance,” and concluded that these decisions constitute economic
activity “[b]ecause of the nature of supply and demand, Plaintiff’s choices directly
22 The defendants also suggest that the uninsured are “active” in the health
insurance market --- and therefore can be regulated and forced to buy insurance ---
because a large percentage of them have had insurance within the past year. The
defendants have provided no authority for the suggestion that once someone is in
the health insurance market at a particular point in time, they are forever in that
market, always subject to regulation, and not ever permitted to leave.
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 52 of 78
Page 53 of 78
affect the price of insurance in the market, which Congress set out in the Act to
control.” See 2010 WL 4860299, at *15.
The problem with this legal rationale, however, is it would essentially have
unlimited application. There is quite literally no decision that, in the natural course
of events, does not have an economic impact of some sort. The decisions of
whether and when (or not) to buy a house, a car, a television, a dinner, or even a
morning cup of coffee also have a financial impact that --- when aggregated with
similar economic decisions --- affect the price of that particular product or service
and have a substantial effect on interstate commerce. To be sure, it is not difficult
to identify an economic decision that has a cumulatively substantial effect on
interstate commerce; rather, the difficult task is to find a decision that does not.23
Some of our wisest jurists have pointed out the threat that lies in an overexpansive
Commerce Clause construction. The words that Judge Learned Hand
wrote in 1935 are even truer today:
In an industrial society bound together by means of
transport and communication as rapid and certain as ours,
it is idle to seek for any transaction, however apparently
isolated, which may not have an effect elsewhere; such a
society is an elastic medium which transmits all tremors
throughout its territory; the only question is of their size.
United States v. A.LA. Schechter Poultry Corp., 76 F.2d 617, 624 (2d Cir. 1935),
aff’d in part and rev’d in part, supra, 295 U.S. at 554 (noting in an elastic society
like ours everything affects commerce in the sense that “[m]otion at the outer rim
is communicated perceptibly, though minutely, to recording instruments at the
center;” but to hold that everything may thus be regulated under the Commerce
Clause “will be an end to our federal system”) (Cardozo, J., concurring). As the
23 As was discussed at the hearing, even personal decisions about whether
to marry, whom to marry, or whether to have children could also be characterized
as “economic decisions.”
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 53 of 78
Page 54 of 78
Supreme Court emphasized in Morrison, supra: “‘In a sense any conduct in this
interdependent world of ours has an ultimate commercial origin or consequence,
but we have not yet said the commerce power may reach so far.’” 529 U.S. at 611
(quoting Lopez, supra, 514 U.S. at 580 (Kennedy, J., concurring)); accord Patton,
supra, 451 F.3d at 628 (explaining that everything could be said to affect interstate
commerce “in the same sense in which a butterfly flapping its wings in China might
bring about a change of weather in New York,” but if all things affecting interstate
commerce were held to be within Congress’ regulatory power, “the Constitution’s
enumeration of powers would have been in vain”).
Attempting to deflect this rather common sense rebuttal to their argument,
the defendants emphasized during oral argument that it is not just the “economic
decision” itself that renders the failure to buy insurance activity; rather, it is that
decision coupled with the fact that the uninsured are guaranteed access to medical
care in hospital emergency rooms as a “backstop,” the use of which can and does
shift costs onto third parties. The defendants thus refer to the failure to buy health
insurance as a “financing decision.” However, this is essentially true of any and all
forms of insurance. It could just as easily be said that people without burial, life,
supplemental income, credit, mortgage guaranty, business interruption, or disability
insurance have made the exact same or similar economic and financing decisions
based on their expectation that they will not incur a particular risk at a particular
point in time; or that if they do, it is more beneficial for them to self-insure and try
to meet their obligations out-of-pocket, but always with the benefit of “backstops”
provided by law, including bankruptcy protection and other government-funded
financial assistance and services. See, e.g., Katie Zezima, Indigent Burials Are On
the Rise, New York Times, Oct. 11, 2009, at A23 (reporting the number of burials
of those who die with insufficient assets are increasing across the country, up 50%
in Oregon, and that funeral expenses are frequently borne by governmental entities;
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 54 of 78
Page 55 of 78
noting that Illinois alone budgets $12 million for these expenses). The “economic
decision” to forego virtually any and all types of insurance can (and cumulatively
do) similarly result in significant cost-shifting to third parties.24
The important distinction is that “economic decisions” are a much broader
and far-reaching category than are “activities that substantially affect interstate
commerce.” While the latter necessarily encompasses the first, the reverse is not
true. “Economic” cannot be equated to “commerce.” And “decisions” cannot be
equated to “activities.” Every person throughout the course of his or her life makes
hundreds or even thousands of life decisions that involve the same general sort of
thought process that the defendants maintain is “economic activity.” There will be
no stopping point if that should be deemed the equivalent of activity for Commerce
Clause purposes.25
24 To the extent that people dying without burial insurance is by itself not as
severe a problem as people without health insurance --- and I readily acknowledge
it is not --- that is merely a difference in degree, not in kind. The fact that people
without health insurance pose a more serious problem than people without burial
insurance may give Congress more of a reason to act; but it does not give it more
Constitutional authority to do so. See United States v. A.LA. Schechter Poultry
Corp., 76 F.2d 617, 624 (2d Cir. 1935) (noting that “emergency does not create
the power [of Congress to act], but it may furnish the occasion for the exercise of
the power conferred by the Constitution”), aff’d in part and rev’d in part, 295 U.S.
495, 55 S. Ct. 837, 79 L. Ed. 1570 (1935).
25 For example, if the decision to forego insurance qualifies as activity, then
presumably the decision to not use that insurance once it has been obtained is also
activity. The government acknowledged during oral argument in Virginia v. Sebelius
that although people are required to buy health insurance under the Act, they are
not yet required to use it. See Transcript of Oral Argument on Defendants’ Motion
to Dismiss, July 1, 2010, at 26 (“the statute doesn’t require anybody to [actually]
get medical services”); see also id. at 30 (“Congress isn’t saying go see a doctor,
or you have to go. What Congress is saying is you have to purchase health
insurance.”). But what happens if the newly-insured (as a class) do not seek
preventive medical care? Because Congress found in the Act that the economy
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 55 of 78
Page 56 of 78
The Commerce Clause originally applied to the trade and exchange of goods
as it sought to eliminate trade barriers by and between the states. Over the years,
the Clause’s reach has been expanded from covering actual interstate commerce
(and its channels and instrumentalities) to intrastate activities that substantially
affect interstate commerce. It has even been applied to activities that involve the
mere consumption of a product (even if there is no legal commercial interstate
market for that product). To now hold that Congress may regulate the so-called
“economic decision” to not purchase a product or service in anticipation of future
consumption is a “bridge too far.” It is without logical limitation and far exceeds
the existing legal boundaries established by Supreme Court precedent.
Because I find both the “uniqueness” and “economic decision” arguments
unpersuasive, I conclude that the individual mandate seeks to regulate economic
inactivity, which is the very opposite of economic activity. And because activity is
required under the Commerce Clause, the individual mandate exceeds Congress’
commerce power, as it is understood, defined, and applied in the existing Supreme
Court case law.
(2) The Necessary and Proper Clause
The defendants contend that the individual mandate is “also a valid exercise
of Congress’s authority if the provision is analyzed under the Necessary and Proper
Clause.” See Def. Mem. at 23. This argument has been appropriately called “the
last, best hope of those who defend ultra vires congressional action.” See Printz,
supra, 521 U.S. at 923. Oversimplified, the defendants’ argument on this point can
be reduced to the following: (i) the Act bans insurers from denying health coverage
loses money each year “because of the poorer health and shorter lifespan of the
uninsured” [see supra note 19], it would seem only logical under the defendants’
rationale that Congress may also regulate the “economic decisions” not to go to
the doctor for regular check-ups and screenings to improve health and longevity,
which, in turn, is intended and expected to increase economic productivity.
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 56 of 78
Page 57 of 78
(guaranteed issue), or charging higher premiums (community rating), to individuals
with pre-existing medical conditions (which increases the insurers’ costs); (ii) as a
result of these bans, individuals will be incentivized to delay obtaining insurance as
they are now guaranteed coverage if they get sick or injured (which decreases the
insurers’ revenues); and (iii) as a result of the foregoing, there will be fewer healthy
people in the insured pool (which will raise the premiums and costs for everyone).
Consequently, it is necessary to require that everyone “get in the pool” so as to
protect the private health insurance market from inevitable collapse.
At the outset, I note that in United States v. Comstock, --- U.S. ---, 130 S.
Ct. 1949, 176 L. Ed. 2d 878 (2010), the Supreme Court’s most recent discussion
and application of the Necessary and Proper Clause, the Court identified and looked
to five “considerations” that informed its decision about whether the legislation at
issue was sustainable: (1) the breadth of the Necessary and Proper Clause; (2) the
history of federal involvement in the relevant arena, and the modest addition to that
arena; (3) the sound reasons for the legislation in light of the government’s interest;
(4) the statute’s accommodation of state interests; and (5) its narrow scope. It is
not entirely clear if this constitutes a “five-factor test,” as Justice Thomas urged in
dissent, see id. at 1974, or whether the “considerations” were merely factors that
the majority believed relevant to deciding that particular case. To the extent that
they constitute a “test,” the individual mandate clearly gets a failing score on at
least two (and possibly a couple more) of the five elements. A statute mandating
that everyone purchase a product from a private company or be penalized (merely
by virtue of being alive and a lawful citizen) is not a “modest” addition to federal
involvement in the national health care market, nor is it “narrow [in] scope.” I will
assume, however, that the Comstock “considerations” were just that, and that
they did not bring about any fundamental change in the Court’s long established
Necessary and Proper Clause analysis.
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 57 of 78
Page 58 of 78
The Necessary and Proper Clause provides that Congress shall have the
power:
To make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, and all
other Powers vested by this Constitution in the
Government of the United States, or in any Department
or Officer thereof.
U.S. Const. art. I, § 8, cl. 18 (emphasis added). The Supreme Court has repeatedly
held, and the emphasized text makes clear, that the Clause is not an independent
source of federal power; rather, it is simply “a caveat that the Congress possesses
all the means necessary to carry out the specifically granted ‘foregoing’ powers of
[section] 8 ‘and all other Powers vested by this Constitution.’ [It] is ‘but merely a
declaration, for the removal of all uncertainty, that the means of carrying into
execution those (powers) otherwise granted are included in the grant.’” Kinsella v.
United States ex rel. Singleton, 361 U.S. 234, 247, 80 S. Ct. 297, 4 L. Ed. 2d 268
(1960); see also Raich, supra, 545 U.S. at 39 (Scalia, J., concurring in judgment)
(stating that, while the Clause “empowers Congress to enact laws . . . that are not
within its authority to enact in isolation,” those laws must be “in effectuation of
[Congress’] enumerated powers”); Kansas v. Colorado, 206 U.S. 46, 88, 27 S. Ct.
655, 51 L. Ed. 956 (1907) (stating that the Necessary and Proper Clause “is not
the delegation of a new and independent power, but simply provision for making
effective the powers theretofore mentioned”).
Hamilton wrote the following in response to the concern voiced by some that
the Necessary and Proper Clause --- and the Supremacy Clause as well --- could be
used to expand federal power and destroy liberties:
These two clauses have been the source of much virulent
invective and petulant declamation against the proposed
Constitution. They have been held up to the people in all
the exaggerated colors of misrepresentation as the
pernicious engines by which their local governments were
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 58 of 78
Page 59 of 78
to be destroyed and their liberties exterminated; as the
hideous monster whose devouring jaws would spare
neither sex nor age, nor high nor low, nor sacred nor
profane; and yet, strange as it may appear, after all this
clamor, to those who may not have happened to
contemplate them in the same light, it may be affirmed
with perfect confidence, that the constitutional operation
of the intended government would be precisely the same,
if these clauses were entirely obliterated, as if they were
repeated in every article. They are only declaratory of a
truth, which would have resulted by necessary and
unavoidable implication from the very act of constituting
a federal government, and vesting it with certain specific
powers.
The Federalist No. 33, at 204-05. To the extent there was anything to fear in the
Constitution, Hamilton explained, it must be found in the specific powers that were
enumerated and not in the Necessary and Proper Clause, for though the latter “may
be chargeable with tautology or redundancy, [it] is at least perfectly harmless.” See
id. at 206. Madison concurred with this view. See The Federalist No. 44, at 302
(explaining that the Clause is entirely redundant for if it had been omitted, “there
can be no doubt” that the same power and authority “would have resulted to the
government, by unavoidable implication”). If these advocates for ratification had
any inkling that, in the early twenty-first century, government proponents of the
individual health insurance mandate would attempt to justify such an assertion of
power on the basis of this Clause, they probably would have been the strongest
opponents of ratification. They would have recognized how such an interpretation
and application of the Necessary and Proper Clause would eviscerate the bedrock
enumerated powers principle upon which the Constitution rests.
One of the amicus curiae briefs illustrates how using the Necessary and
Proper Clause in the manner as suggested by the defendants would vitiate the
enumerated powers principle (doc. 119). It points out that the defendants’ are
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 59 of 78
Page 60 of 78
essentially admitting that the Act will have serious negative consequences, e.g.,
encouraging people to forego health insurance until medical services are needed,
increasing premiums and costs for everyone, and thereby bankrupting the health
insurance industry --- unless the individual mandate is imposed. Thus, rather than
being used to implement or facilitate enforcement of the Act’s insurance industry
reforms, the individual mandate is actually being used as the means to avoid the
adverse consequences of the Act itself. Such an application of the Necessary and
Proper Clause would have the perverse effect of enabling Congress to pass illconceived,
or economically disruptive statutes, secure in the knowledge that the
more dysfunctional the results of the statute are, the more essential or “necessary”
the statutory fix would be. Under such a rationale, the more harm the statute does,
the more power Congress could assume for itself under the Necessary and Proper
Clause. This result would, of course, expand the Necessary and Proper Clause far
beyond its original meaning, and allow Congress to exceed the powers specifically
enumerated in Article I. Surely this is not what the Founders anticipated, nor how
that Clause should operate.
Ultimately, the Necessary and Proper Clause vests Congress with the power
and authority to exercise means which may not in and of themselves fall within an
enumerated power, to accomplish ends that must be within an enumerated power.
Although Congress’ authority to act in furtherance of those ends is unquestionably
broad, there are nevertheless “restraints upon the Necessary and Proper Clause
authority.” See Raich, supra, 545 U.S. at 39 (Scalia, J., concurring in judgment).
Thomas Jefferson warned against an overly expansive application of cause and
effect in interpreting the interplay between Congress’ enumerated powers and the
Necessary and Proper Clause:
Congress are authorized to defend the nation. Ships are
necessary for defense; copper is necessary for ships;
mines necessary for copper; a company necessary to
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 60 of 78
Page 61 of 78
work mines; and who can doubt this reasoning who has
ever played at “This is the House that Jack Built?”
Letter from Thomas Jefferson to Edward Livingston (Apr. 30, 1800), in 31 The
Papers of Thomas Jefferson 547 (B. Oberg ed., 2004); accord Comstock, supra,
130 S. Ct. at 1966 (referencing same analogy and stating that the Necessary and
Proper Clause “must be controlled by some limitations lest, as Thomas Jefferson
warned, congressional powers become completely unbounded by linking one power
to another ad infinitum”) (Kennedy, J., concurring); see also id. at 1970 (explaining
that the Clause “does not give Congress carte blanche,” and it is the “obligation of
this Court” to impose limitations) (Alito, J., concurring). As for where the restraints
and limitations might be, it is --- as is often the case --- appropriate to look to Chief
Justice Marshall, who first considered this issue and articulated the still-governing
analysis:
Let the end be legitimate, let it be within the scope of the
constitution, and all means which are appropriate, which
are plainly adapted to that end, which are not prohibited,
but consist with the letter and spirit of the constitution,
are constitutional.
* * *
[However,] should congress, in the execution of its
powers, adopt measures which are prohibited by the
constitution; or should congress, under the pretext of
executing its powers, pass laws for the accomplishment
of objects not intrusted to the government; it would
become the painful duty of this tribunal, should a case
requiring such a decision come before it, to say, that
such an act was not the law of the land.
McCulloch, supra, 17 U.S. at 421, 423.
In light of United States v. South-Eastern Underwriters, 322 U.S. 533, 64 S.
Ct. 1162, 88 L. Ed. 1440 (1944), the “end” of regulating the health care insurance
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 61 of 78
Page 62 of 78
industry (including preventing insurers from excluding or charging higher rates to
people with pre-existing conditions) is clearly “legitimate” and “within the scope of
the constitution.” But, the means used to serve that end must be “appropriate,”
“plainly adapted,” and not “prohibited” or inconsistent “with the letter and spirit of
the constitution.” These phrases “are not merely hortatory.” Raich, supra, 545 U.S.
at 39 (Scalia, J., concurring in judgment).
The Necessary and Proper Clause cannot be utilized to “pass laws for the
accomplishment of objects” that are not within Congress’ enumerated powers. As
the previous analysis of the defendants’ Commerce Clause argument reveals, the
individual mandate is neither within the letter nor the spirit of the Constitution. To
uphold that provision via application of the Necessary and Proper Clause would
authorize Congress to reach and regulate far beyond the currently established
“outer limits” of the Commerce Clause and effectively remove all limits on federal
power. As the Supreme Court explained in Printz:
When a “Law . . . for carrying into Execution” the
Commerce Clause [violates other Constitutional
principles], it is not a “Law . . . proper for carrying into
Execution the Commerce Clause,” and is thus, in the
words of the Federalist, “merely an act of usurpation”
which “deserves to be treated as such.”
Printz, supra, 521 U.S. at 923-24 (citations and brackets omitted) (emphasis in
original); see also Comstock, supra, 130 S. Ct. at 1967-68 (“It is of fundamental
importance to consider whether essential attributes [of federalism embodied in the
Constitution] are compromised by the assertion of federal power under the
Necessary and Proper Clause; if so, that is a factor suggesting that the power is
not one properly within the reach of federal power.”) (Kennedy, J., concurring).
Here, the “essential attributes” of the Commerce Clause limitations on the federal
government’s power would definitely be compromised by this assertion of federal
power via the Necessary and Proper Clause. If Congress is allowed to define the
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 62 of 78
Page 63 of 78
scope of its power merely by arguing that a provision is “necessary” to avoid the
negative consequences that will potentially flow from its own statutory
enactments, the Necessary and Proper Clause runs the risk of ceasing to be the
“perfectly harmless” part of the Constitution that Hamilton assured us it was, and
moves that much closer to becoming the “hideous monster [with] devouring jaws”
that he assured us it was not.
The defendants have asserted again and again that the individual mandate is
absolutely “necessary” and “essential” for the Act to operate as it was intended by
Congress. I accept that it is.26 Nevertheless, the individual mandate falls outside the
boundary of Congress’ Commerce Clause authority and cannot be reconciled with a
limited government of enumerated powers. By definition, it cannot be “proper.”
(3) Constitutionality of the Individual Mandate
The individual mandate is outside Congress’ Commerce Clause power, and it
cannot be otherwise authorized by an assertion of power under the Necessary and
Proper Clause. It is not Constitutional. Accordingly, summary judgment must be
granted in favor of the plaintiffs on Count I.
(4) Severability
Having determined that the individual mandate exceeds Congress’ power
under the Commerce Clause, and cannot be saved by application of the Necessary
and Proper Clause, the next question is whether it is severable from the remainder
of the Act. In considering this issue, I note that the defendants have acknowledged
that the individual mandate and the Act’s health insurance reforms, including the
guaranteed issue and community rating, will rise or fall together as these reforms
“cannot be severed from the [individual mandate].” See, e.g., Def. Opp. at 40. As
explained in my order on the motion to dismiss: “the defendants concede that [the
26 As will be seen, the defendants’ repeated assertions on this point impact
the severability analysis.
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 63 of 78
Page 64 of 78
individual mandate] is absolutely necessary for the Act’s insurance market reforms
to work as intended. In fact, they refer to it as an ‘essential’ part of the Act at
least fourteen times in their motion to dismiss.” Thus, the only question is whether
the Act’s other, non-health-insurance-related provisions can stand independently or
whether they, too, must fall with the individual mandate.27
Severability is a doctrine of judicial restraint, and the Supreme Court has
applied and reaffirmed that doctrine just this past year: “‘Generally speaking, when
confronting a constitutional flaw in a statute, [courts] try to limit the solution to the
problem,’ severing any ‘problematic portions while leaving the remainder intact.’”
Free Enterprise Fund v. Public Co. Accounting Oversight Board, --- U.S. ---, 130 S.
Ct. 3138, 3161, 177 L. Ed. 2d 706 (2010) (citation omitted) (emphasis added).
Because the unconstitutionality of one provision of a legislative scheme “does not
necessarily defeat or affect the validity of its remaining provisions,” the “normal
rule” is that partial invalidation is proper. Id. (citations omitted) (emphasis added).
Where Congress has “enacted a statutory scheme for an obvious purpose, and
where Congress has included a series of provisions operating as incentives to
achieve that purpose, the invalidation of one of the incentives should not ordinarily
cause Congress’ overall intent to be frustrated.” New York, supra, 505 U.S. at 186
(emphasis added). As the emphasized text shows, the foregoing is not a rigid and
inflexible rule, but rather it is the general standard that applies in the typical case.
However, this is anything but the typical case.
The question of severability ultimately turns on the nature of the statute at
issue. For example, if Congress intended a given statute to be viewed as a bundle
of separate legislative enactment or a series of short laws, which for purposes of
27 In considering this issue, I will at times borrow heavily from one of the
amicus briefs filed in the case for it quite cogently and effectively sets forth the
applicable standard and governing analysis of severability (doc. 123).
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 64 of 78
Page 65 of 78
convenience and efficiency were arranged together in a single legislative scheme, it
is presumed that any provision declared unconstitutional can be struck and severed
without affecting the remainder of the statute. If, however, the statute is viewed
as a carefully-balanced and clockwork-like statutory arrangement comprised of
pieces that all work toward one primary legislative goal, and if that goal would be
undermined if a central part of the legislation is found to be unconstitutional, then
severability is not appropriate. As will be seen, the facts of this case lean heavily
toward a finding that the Act is properly viewed as the latter, and not the former.
The standard for determining whether an unconstitutional statutory provision
can be severed from the remainder of the statute is well-established, and it consists
of a two-part test. First, after finding the challenged provision unconstitutional, the
court must determine if the other provisions can function independently and remain
“fully operative as a law.” See Free Enterprise Fund, supra, 130 S. Ct. at 3161. In
a statute that is approximately 2,700 pages long and has several hundred sections
--- certain of which have only a remote and tangential connection to health care ---
it stands to reason that some (perhaps even most) of the remaining provisions can
stand alone and function independently of the individual mandate. The defendants
have identified several provisions that they believe can function independently: the
prohibition on discrimination against providers who will not furnish assisted suicide
services; an “Independence at Home” project for chronically ill seniors; a special
Medicare enrollment period for disabled veterans; Medicare reimbursement for
bone-marrow density tests; and provisions devised to improve women’s health,
prevent abuse, and ameliorate dementia [Def. Opp. at 40], as well as abstinence
education and disease prevention [doc. 74 at 14]. And as was mentioned during
oral argument, there is little doubt that the provision in the Act requiring employers
to provide a “reasonable break time” and separate room for nursing mothers to go
and express breast milk [Act § 4207] can function without the individual mandate.
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 65 of 78
Page 66 of 78
Importantly, this provision and many others are already in effect and functioning.
However, the question is not whether these and the myriad other provisions can
function as a technical or practical matter; instead, the “more relevant inquiry” is
whether these provisions will comprise a statute that will function “in a manner
consistent with the intent of Congress.” See Alaska Airlines, Inc. v. Brock, 480
U.S. 678, 685, 107 S. Ct. 1476, 94 L. Ed. 2d 661 (1987) (emphasis in original).
Thus, the first step in the severability analysis requires (at least to some extent)
that I try to infer Congress’ intent. Although many of the remaining provisions, as
just noted, can most likely function independently of the individual mandate, there
is nothing to indicate that they can do so in the manner intended by Congress. The
analysis at the second step of the severability test makes that conclusion pretty
clear.
At this second step, reviewing courts may look to “the statute’s text or
historical context” to determine if Congress, had it been presented with a statute
that did not contain the struck part, would have preferred to have no statute at all.
See Free Enterprise Fund, supra, 130 S. Ct. at 3161-62. “Unless it is evident that
the Legislature would not have enacted those provisions which are within its
power, independently of that which is not, the invalid part may be dropped if what
is left is fully operative as a law.” See Alaska Airlines, Inc., supra, 480 U.S. at 684.
But once again, that presupposes that the provisions left over function in a manner
consistent with the main objective and purpose of the statute in the first place. Cf.
New York, supra, 505 U.S. at 187 (unconstitutional provision held to be severable
where the remaining statute “still serves Congress’ objective” and the “purpose of
the Act is not defeated by the invalidation” of the unconstitutional provision)
(emphasis added). While this inquiry “can sometimes be ‘elusive’” [Free Enterprise
Fund, supra, 130 S. Ct. at 3161], on the unique facts of this particular case, the
record seems to strongly indicate that Congress would not have passed the Act in
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 66 of 78
Page 67 of 78
its present form if it had not included the individual mandate. This is because the
individual mandate was indisputably essential to what Congress was ultimately
seeking to accomplish. It was, in fact, the keystone or lynchpin of the entire health
reform effort. After looking at the “statute’s text” (or, rather, its conspicuous lack
of text) and the “historical record” [see Free Enterprise Fund, supra, 130 S. Ct. at
3162], there are two specific facts that are particularly telling in this respect.
First, the Act does not contain a “severability clause,” which is commonly
included in legislation to provide that if any part or provision is held invalid, then
the rest of the statute will not be affected. Although it is true that the absence of
such a clause, in and of itself, “does not raise a presumption against severability,”
[New York, supra, 505 U.S. at 186], that is not the same thing as saying that its
absence is irrelevant to the analysis. In INS v. Chadha, 462 U.S. 919, 103 S. Ct.
2764, 77 L. Ed. 2d 317 (1983), for example, the Supreme Court concluded that it
did not have to embark on the “elusive inquiry” of whether Congress intended the
unconstitutional provision in that case to be severable from the rest of the statute
because Congress included a severability clause with language that was plain and
unambiguous. See id. at 931-32. And, in Alaska Airlines, Inc., supra, 480 U.S. at
686, the Court similarly held that the severability analysis is “eased” when there is
a severability clause in the statute, such that only “strong evidence” can overcome
it. By necessary implication, the evidence against severability need not be as strong
to overcome the general presumption when there is no such clause.
The lack of a severability clause in this case is significant because one had
been included in an earlier version of the Act, but it was removed in the bill that
subsequently became law. “Where Congress includes [particular] language in an
earlier version of a bill but deletes it prior to enactment, it may be presumed that
the [omitted provision] was not intended.” Russello v. United States, 464 U.S. 16,
23-24, 104 S. Ct. 296, 78 L. Ed. 2d 17 (1983). In other words, the severability
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 67 of 78
Page 68 of 78
clause was intentionally left out of the Act. The absence of a severability clause is
further significant because the individual mandate was controversial all during the
progress of the legislation and Congress was undoubtedly well aware that legal
challenges were coming. Indeed, as noted earlier, even before the Act became law,
several states had passed statutes declaring the individual mandate unconstitutional
and purporting to exempt their residents from it; and Congress’ own attorneys in
the CRS had basically advised that the challenges might well have legal merit as it
was “unclear” if the individual mandate had “solid constitutional foundation.” See
CRS Analysis, supra, at 3. In light of the foregoing, Congress’ failure to include a
severability clause in the Act (or, more accurately, its decision to not include one
that had been included earlier) can be viewed as strong evidence that Congress
recognized the Act could not operate as intended without the individual mandate.
Moreover, the defendants have conceded that the Act’s health insurance
reforms cannot survive without the individual mandate, which is extremely
significant because the various insurance provisions, in turn, are the very heart of
the Act itself. The health insurance reform provisions were cited repeatedly during
the health care debate, and they were instrumental in passing the Act. In speech
after speech President Obama emphasized that the legislative goal was “health
insurance reform” and stressed how important it was that Congress fundamentally
reform how health insurance companies do business, and “protect every American
from the worst practices of the insurance industry.” See, for example, Remarks of
President Obama, The State of the Union, delivered Jan. 27, 2009.28 Meanwhile,
28 See also, e.g., The White House, Office of the Press Secretary, Official
Transcript of President Obama’s News Conference, July 22, 2009, available at:
http://www.whitehouse.gov/the-press-office/news-conference-president-july-22-20
09; The White House, Office of the Press Secretary, Official Transcript of President
Obama’s Remarks at Health Care Reform Town Hall, July 23, 2009, available at:
http://www.whitehouse.gov/the_press_office/Remarks-by-the-President-at-Health-C
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 68 of 78
Page 69 of 78
the Act’s supporters in the Senate and House similarly spoke repeatedly and often
of the legislative efforts as being the means to comprehensively reform the health
insurance industry.29
To be sure, the words “protection” and “affordable” in the title of the Act
itself are inextricably tied to the health insurance reform provisions (and the
individual mandate in particular), as the defendants have emphasized throughout
the course of this litigation. See, e.g., Def. Mem. at 1 (“Focusing on insurance
industry practices that prevented millions of Americans from obtaining affordable
insurance, the Act bars insurers from denying coverage to those with pre-existing
conditions or from charging discriminatory premiums on the basis of medical
history. Congress recognized that these reforms of insurance industry practices
were required to protect consumers . . . “) (emphasis added); Reply in Support of
Defendants’ Motion to Dismiss, filed August 27, 2010 (doc. 74), at 21 (stating
that the individual mandate “is necessary for Congress’s insurance reforms to
work”; that “those provisions protect millions of Americans”; and that “Congress
plainly regarded their protection as a core objective of the Act”) (emphasis added).
The defendants have further identified and highlighted the essential role that the
individual mandate played in the overall regulatory reform of the interstate health
care and health insurance markets:
[T]he [individual mandate] is essential to the Act’s
are-Reform-Town-Hall/.
29 See, e.g., David Welna, Analyzing Democrats’ Word Shift on Health Care,
National Public Radio, Nov. 17, 2009 (reporting that during the health care reform
debate the Act’s proponents referred to the ongoing efforts as “health insurance
reform,” which, according to the head of a nonpartisan health care organization, “is
a much more accurate label” as the “health care makeover has ended up being
largely about [reforming] insurance companies”), available at
http://www.npr.org/templates/story/story.php?storyId=120464701.
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 69 of 78
Page 70 of 78
comprehensive scheme to ensure that health insurance
coverage is available and affordable. In addition to
regulating industry underwriting practices, the Act
promotes availability and affordability through (a) “health
benefit exchanges” that enable individuals and small
businesses to obtain competitive prices for health
insurance; (b) financial incentives for employers to offer
expanded insurance coverage, (c) tax credits to lowincome
and middle-income individuals and families, and
(d) extension of Medicaid to additional low-income
individuals. The [individual mandate] works in tandem
with these and other reforms. . . .
Congress thus found that failure to regulate the decision
to forgo insurance . . . would undermine the
“comprehensive regulatory regime” in the Act. . . .
[The individual mandate] is essential to Congress’s overall
regulatory reform of the interstate health care and health
insurance markets . . . is “essential” to achieving key
reforms of the interstate health insurance market . . .
[and is] necessary to make the other regulations in the
Act effective.
Memorandum in Support of Defendants’ Motion to Dismiss, filed June 17, 2010
(doc. 56-1), at 46-48 (emphasis added).
Congress has also acknowledged in the Act itself that the individual mandate
is absolutely “essential” to the Act’s overarching goal of expanding the availability
of affordable health insurance coverage and protecting individuals with pre-existing
medical conditions:
[I]f there were no [individual mandate], many individuals
would wait to purchase health insurance until they
needed care . . . The [individual mandate] is essential to
creating effective health insurance markets in which
improved health insurance products that are guaranteed
issue and do not exclude coverage of pre-existing
conditions can be sold.
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 70 of 78
Page 71 of 78
Act § 1501(a)(2)(I) (emphasis added).
In other words, the individual mandate is indisputably necessary to the Act’s
insurance market reforms, which are, in turn, indisputably necessary to the purpose
of the Act. This is obviously a very different situation than in Alaska Airlines, Inc.,
supra, 480 U.S. at 694 n.18 and 696 (unconstitutional provision severed from rest
of statute where the provision was “uncontroversial,” and the debate on the final
bill demonstrated its “relative unimportance”), and is more in line with the situation
alluded to in New York, supra, 505 U.S. at 187 (suggesting by implication that the
entire legislation should be struck when “the purpose of the Act is . . . defeated by
the invalidation” of one of its provisions).
In weighing the Act’s provisions and attempting to discern legislative intent
and purpose, I have kept in mind the rationale underlying the severability doctrine,
which the Supreme Court has described as follows:
Three interrelated principles inform our approach to
remedies. First, we try not to nullify more of a
legislature's work than is necessary, for we know that a
ruling of unconstitutionality frustrates the intent of the
elected representatives of the people. . . . Second,
mindful that our constitutional mandate and institutional
competence are limited, we restrain ourselves from
rewriting [a] law to conform it to constitutional
requirements even as we strive to salvage it . . . Third,
the touchstone for any decision about remedy is
legislative intent, for a court cannot use its remedial
powers to circumvent the intent of the legislature.
Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 321, 329-30,
126 S. Ct. 961, 163 L. Ed. 2d 812 (2006) (citations and brackets omitted). The
first principle merely reflects the general judicial policy discussed at the beginning
of this section; that is, because a ruling of unconstitutionality frustrates the intent
of democratically-elected representatives of the people, the “normal rule” --- in the
“normal” case --- will ordinarily require that as little of a statute be struck down as
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 71 of 78
Page 72 of 78
possible. The two other principles, however, require closer analysis.
As for the second principle, the Ayotte Court explained:
Our ability to devise a judicial remedy that does not entail
quintessentially legislative work often depends on how
clearly we have already articulated the background
constitutional rules at issue . . . But making distinctions in
a murky constitutional context, or where line-drawing is
inherently complex, may call for a “far more serious
invasion of the legislative domain” than we ought to
undertake.
Supra, 546 U.S. at 329-30. Thus, cleanly and clearly severing an unconstitutional
provision is one thing, but having to re-balance a statutory scheme by engaging in
quasi-legislative “line drawing” is a “‘far more serious invasion of the legislative
domain’” than courts should undertake. See id. This analysis merges into the third
principle identified in Ayotte:
After finding an application or portion of a statute
unconstitutional, we must next ask: Would the legislature
have preferred what is left of its statute to no statute at
all? All the while, we are wary of legislatures who would
rely on our intervention, for it would certainly be
dangerous if the legislature could set a net large enough
to catch all possible offenders, and leave it to the courts
to step inside to announce to whom the statute may be
applied. This would, to some extent, substitute the
judicial for the legislative department of the government.
Id. at 330 (citations and brackets omitted).
Severing the individual mandate from the Act along with the other insurance
reform provisions --- and in the process reconfiguring an exceedingly lengthy and
comprehensive legislative scheme --- cannot be done consistent with the principles
set out above. Going through the 2,700-page Act line-by-line, invalidating dozens
(or hundreds) of some sections while retaining dozens (or hundreds) of others,
would not only take considerable time and extensive briefing, but it would, in the
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 72 of 78
Page 73 of 78
end, be tantamount to rewriting a statute in an attempt to salvage it, which is
foreclosed by Ayotte, supra. Courts should not even attempt to do that. It would
be impossible to ascertain on a section-by-section basis if a particular statutory
provision could stand (and was intended by Congress to stand) independently of
the individual mandate. The interoperative effects of a partial deletion of legislative
provisions are often unforseen and unpredictable. For me to try and “second guess”
what Congress would want to keep is almost impossible. To highlight one of many
examples, consider the Internal Revenue Service Form 1099 reporting requirement,
which requires that businesses, including sole proprietorships, issue 1099 tax
forms to individuals or corporations to whom or which they have paid more than
$600 for goods or services in any given tax year [Act § 9006]. This provision has
no discernable connection to health care and was intended to generate offsetting
revenue for the Act, the need of which is greatly diminished in the absence of the
“health benefit exchanges,” subsidies and tax credits, and Medicaid expansion (all
of which, as the defendants have conceded, “work in tandem” with the individual
mandate and other insurance reform provisions). How could I possibly determine if
Congress intended the 1099 reporting provision to stand independently of the
insurance reform provisions? Should the fact that it has been widely criticized by
both Congressional supporters and opponents of the Act and the fact that there
have been bipartisan efforts to repeal it factor at all into my determination?
In the final analysis, this Act has been analogized to a finely crafted watch,
and that seems to fit. It has approximately 450 separate pieces, but one essential
piece (the individual mandate) is defective and must be removed. It cannot function
as originally designed. There are simply too many moving parts in the Act and too
many provisions dependent (directly and indirectly) on the individual mandate and
other health insurance provisions --- which, as noted, were the chief engines that
drove the entire legislative effort --- for me to try and dissect out the proper from
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 73 of 78
Page 74 of 78
the improper, and the able-to-stand-alone from the unable-to-stand-alone. Such a
quasi-legislative undertaking would be particularly inappropriate in light of the fact
that any statute that might conceivably be left over after this analysis is complete
would plainly not serve Congress’ main purpose and primary objective in passing
the Act. The statute is, after all, called “The Patient Protection and Affordable Care
Act,” not “The Abstinence Education and Bone Marrow Density Testing Act.” The
Act, like a defectively designed watch, needs to be redesigned and reconstructed
by the watchmaker.
If Congress intends to implement health care reform --- and there would
appear to be widespread agreement across the political spectrum that reform is
needed --- it should do a comprehensive examination of the Act and make a
legislative determination as to which of its hundreds of provisions and sections will
work as intended without the individual mandate, and which will not. It is Congress
that should consider and decide these quintessentially legislative questions, and not
the courts.
In sum, notwithstanding the fact that many of the provisions in the Act can
stand independently without the individual mandate (as a technical and practical
matter), it is reasonably “evident,” as I have discussed above, that the individual
mandate was an essential and indispensable part of the health reform efforts, and
that Congress did not believe other parts of the Act could (or it would want them
to) survive independently. I must conclude that the individual mandate and the
remaining provisions are all inextricably bound together in purpose and must stand
or fall as a single unit. The individual mandate cannot be severed. This conclusion
is reached with full appreciation for the “normal rule” that reviewing courts should
ordinarily refrain from invalidating more than the unconstitutional part of a statute,
but non-severability is required based on the unique facts of this case and the
particular aspects of the Act. This is not a situation that is likely to be repeated.
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 74 of 78
Page 75 of 78
(5) Injunction
The last issue to be resolved is the plaintiffs’ request for injunctive relief
enjoining implementation of the Act, which can be disposed of very quickly.
Injunctive relief is an “extraordinary” [Weinberger v. Romero-Barcelo, 456
U.S. 305, 312, 102 S. Ct. 1798, 72 L. Ed. 2d 91 (1982)], and “drastic” remedy
[Aaron v. S.E.C., 446 U.S. 680, 703, 100 S. Ct. 1945, 64 L. Ed. 2d 611 (1980)
(Burger, J., concurring)]. It is even more so when the party to be enjoined is the
federal government, for there is a long-standing presumption “that officials of the
Executive Branch will adhere to the law as declared by the court. As a result, the
declaratory judgment is the functional equivalent of an injunction.” See Comm. on
Judiciary of U.S. House of Representatives v. Miers, 542 F.3d 909, 911 (D.C. Cir.
2008); accord Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 n.8 (D.C. Cir.
1985) (“declaratory judgment is, in a context such as this where federal officers
are defendants, the practical equivalent of specific relief such as an injunction . . .
since it must be presumed that federal officers will adhere to the law as declared
by the court”) (Scalia, J.) (emphasis added).
There is no reason to conclude that this presumption should not apply here.
Thus, the award of declaratory relief is adequate and separate injunctive relief is
not necessary.
CONCLUSION
The existing problems in our national health care system are recognized by
everyone in this case. There is widespread sentiment for positive improvements
that will reduce costs, improve the quality of care, and expand availability in a way
that the nation can afford. This is obviously a very difficult task. Regardless of how
laudable its attempts may have been to accomplish these goals in passing the Act,
Congress must operate within the bounds established by the Constitution. Again,
this case is not about whether the Act is wise or unwise legislation. It is about the
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 75 of 78
Page 76 of 78
Constitutional role of the federal government.
For the reasons stated, I must reluctantly conclude that Congress exceeded
the bounds of its authority in passing the Act with the individual mandate. That is
not to say, of course, that Congress is without power to address the problems and
inequities in our health care system. The health care market is more than one sixth
of the national economy, and without doubt Congress has the power to reform and
regulate this market. That has not been disputed in this case. The principal dispute
has been about how Congress chose to exercise that power here.30
Because the individual mandate is unconstitutional and not severable, the
entire Act must be declared void. This has been a difficult decision to reach, and I
am aware that it will have indeterminable implications. At a time when there is
virtually unanimous agreement that health care reform is needed in this country, it
is hard to invalidate and strike down a statute titled “The Patient Protection and
Affordable Care Act.” As Judge Luttig wrote for an en banc Fourth Circuit in
30 On this point, it should be emphasized that while the individual mandate
was clearly “necessary and essential” to the Act as drafted, it is not “necessary
and essential” to health care reform in general. It is undisputed that there are
various other (Constitutional) ways to accomplish what Congress wanted to do.
Indeed, I note that in 2008, then-Senator Obama supported a health care reform
proposal that did not include an individual mandate because he was at that time
strongly opposed to the idea, stating that "if a mandate was the solution, we can
try that to solve homelessness by mandating everybody to buy a house.” See
Interview on CNN’s American Morning, Feb. 5, 2008, transcript available at:
http://transcripts.cnn.com/TRANSCRIPTS/0802/05/ltm.02.html. In fact, he pointed
to the similar individual mandate in Massachusetts --- which was imposed under the
state’s police power, a power the federal government does not have --- and opined
that the mandate there left some residents “worse off” than they had been before.
See Christopher Lee, Simple Question Defines Complex Health Debate, Washington
Post, Feb. 24, 2008, at A10 (quoting Senator Obama as saying: "In some cases,
there are people [in Massachusetts] who are paying fines and still can't afford
[health insurance], so now they're worse off than they were . . . They don't have
health insurance, and they're paying a fine . . .”).
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 76 of 78
Page 77 of 78
striking down the “Violence Against Women Act” (before the case was appealed
and the Supreme Court did the same):
No less for judges than for politicians is the temptation to
affirm any statute so decorously titled. We live in a time
when the lines between law and politics have been
purposefully blurred to serve the ends of the latter. And,
when we, as courts, have not participated in this most
perniciously machiavellian of enterprises ourselves, we
have acquiesced in it by others, allowing opinions of law
to be dismissed as but pronouncements of personal
agreement or disagreement. The judicial decision making
contemplated by the Constitution, however, unlike at
least the politics of the moment, emphatically is not a
function of labels. If it were, the Supreme Court assuredly
would not have struck down the “Gun-Free School Zones
Act,” the “Religious Freedom Restoration Act,” the “Civil
Rights Act of 1871,” or the “Civil Rights Act of 1875.”
And if it ever becomes such, we will have ceased to be a
society of law, and all the codification of freedom in the
world will be to little avail.
Brzonkala, supra, 169 F.3d at 889.
In closing, I will simply observe, once again, that my conclusion in this case
is based on an application of the Commerce Clause law as it exists pursuant to the
Supreme Court’s current interpretation and definition. Only the Supreme Court (or a
Constitutional amendment) can expand that.
For all the reasons stated above and pursuant to Rule 56 of the Federal Rules
of Civil Procedure, the plaintiffs’ motion for summary judgment (doc. 80) is hereby
GRANTED as to its request for declaratory relief on Count I of the Second
Amended Complaint, and DENIED as to its request for injunctive relief; and the
defendants’ motion for summary judgment (doc. 82) is hereby GRANTED on Count
IV of the Second Amended Complaint. The respective cross-motions are each
DENIED.
In accordance with Rule 57 of the Federal Rules of Civil Procedure and Title
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 77 of 78
Page 78 of 78
28, United States Code, Section 2201(a), a Declaratory Judgment shall be entered
separately, declaring “The Patient Protection and Affordable Care Act”
unconstitutional.
DONE and ORDERED this 31st day of January, 2011.
/s/ Roger Vinson
ROGER VINSON
Senior United States District Judge
Case No.: 3:10-cv-91-RV/EMT

__________________________

Footnotes:

1) The states are Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin, and Wyoming.

2) The Federalist consists of 85 articles or essays written by James Madison, Alexander Hamilton, and John Jay, advocating for ratification of the Constitution. "The opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our constitution; and is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank." Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 418, 5 L. Ed. 257 (1821) (Marshall, C.J.). It will be cited to, and relied on, several times throughout the course of this opinion.

3) In United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995), a watershed decision that will be discussed infra, the Supreme Court began its analysis by referring to these limits on federal power as "first principles." In a manner of speaking, they may be said to be "last principles" as well, for the Lopez Court deemed them to be so important that it also ended its opinion with a full discussion of them. See id. at 567-68. Shortly thereafter, in United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000), which will also be discussed infra, the Supreme Court referred to the division of authority and limits on federal power as the "central principle of our constitutional system." See id. at 616 n.7. Clearly, if the modern Supreme Court regards the limits of federal power as first, central, and last principles, those principles are profoundly important --- even in this day and age --- and they must be treated accordingly in deciding this case.

Why The Founding Fathers Would Want Obama's Plans to Fail -- Byron York -- March 10, 2009

2009-03-26T15:43:00.004-05:00

James Madison was not specifically contemplating Barack Obama, or Nancy Pelosi, when he wrote Federalist No. 63. But reading the document — one of the seminal arguments in favor of adopting the U.S. Constitution — it’s clear Madison knew their type. And he knew they would come along again and again in American history, if Americans were lucky enough to have a long history.

Obama and Pelosi, along with their most ardent supporters, are the types to see a crisis, like our current economic mess, as a "great opportunity," as the president put it last Saturday. They are the types, after a long period out of power, to attempt to use that "great opportunity" to push through far-reaching changes in national policy that had only a tangential connection, if at all, to the crisis at hand. And they are the types the Founding Fathers wanted to stop.

In the Federalist Papers, written 221 years ago, Madison addressed the need for a Senate to accompany the more populist House of Representatives. An upper body, he wrote, "“may be sometimes necessary as a defense to the people against their own temporary errors and delusions."

For the times when a political leader would attempt to capitalize on those errors and delusions, the Founders prescribed the Senate, with its members elected to terms three times the length of those in the House, originally chosen not by the people but by the state legislatures. From Federalist 63:

"There are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind?"

Now is the time for the salutary interference of temperate and respectable citizens, otherwise known as the 41 Republicans in the United States Senate. It is their job to help the president in areas where there is widespread agreement that he should be helped, and hold the line on everything else.

Of course the economy is in crisis. But if Obama had his way, everything would be treated as if it were a crisis. Health care is a crisis. The environment is a crisis. Education is a crisis. In truth, those other areas are not crises, and the Senate’s job is to delay action on them until Obama’s power to stir popular passions fades. Then, whatever legislation is truly needed on health care, etc., can be undertaken in a more reasoned and measured way.

Five years ago, in the 2004 presidential race, Democratic pollster Stan Greenberg did some research on behalf of candidate John Kerry. Greenberg wanted Kerry to be more bold in advocating wholesale change, so he convened a series of focus groups to test the public’s reaction to a number of aggressive policy proposals.

Greenberg found that voters would accept boldness on an issue or two, provided they were really important. But when a candidate promised bold action across the board, the people balked. "While voters are clearly open to bold initiatives to major problems, they may be less attracted to the candidate who wants to act boldly in every area, without exception," Greenberg concluded. "All together, that may have suggested an expanding scope for government beyond what people felt they could trust."

In our current situation, the people elected Barack Obama and large Democratic majorities in Congress. They didn’t elect them to do nothing. When action is needed to deal with the economic crisis — it would be nice to have a financial stabilization plan, Mr. President — they will support it.

But they didn’t elect Obama to change everything, either. With Pelosi eager to go along with the president’s every wish, it’s up to temperate and respectable citizens to distinguish the crisis from the non-crisis, and act accordingly.

In other words, it’s up to the Senate to slow things down. Just like Madison planned.

----------
Byron York, Chief Political Correspondent 3/10/09

The Founders Wanted Presidents to Fail If They Deserved To Fail -- Rush Limbaugh -- March 10,2009

2009-03-26T15:37:00.003-05:00

I want to take a brief moment here before we get back to the literal content portion of the program and coming up is a three-minute audio sound bite of Obama calling the New York Times objecting to the socialism question they asked him when they interviewed him aboard one of his two private jets. See, I realize, ladies and gentlemen, I realize this because we've got the data to back it up, the audience of this program is literally multiplying at geometric progressions, proportions. There are new people tuning in, quite understandably so, and as I've always said, it takes some devotion to this program, some weeks, some days, to understand the context in which things happen.

Now, the last half hour of the previous hour was a pretty good example of how we do things on this program. We illustrate absurdity by being absurd. We play all these sound bites from Warren Buffett and from Barton Biggs and Jim Cramer, all of these people who say in sound bite after sound bite that they profoundly disagree and are terribly disturbed about Obama's economic policies, but boy, they love the guy, and they supported the guy, and they, oh, what a great family, oh, ho-ho-ho, guy just wonderful, I voted for him, I support the guy. And I realize that people listening to this way of making a point who are new to the program, "Why are you being so loud, why are you making the point?" And, see, if you're asking that question, a good question, and the answer to it is found in this statement. The people who listen to this program regularly have knowledge about me and this program. One of the things they know is that I love this country. Another thing they know is that I love people. All conservatives love people and we are colorblind. We don't look out over a group of people and say, "Ooh, there's a group of women sitting over there, and there's a group of blacks, there's some Hispanics, ooh, there's some Walmart voters, ooh, there's some people who think the era of Reagan is over."

We love the country, we love people, and are in awe of the founding of this country and its blessings by God and the recognition in our founding documents that we were all created with certain inalienable rights, among them life, liberty, pursuit of happiness. We conservatives see all three of those things under assault. We in this audience want the best for every American. We want everyone to succeed. We do not want our country to fail, and we do not want individual citizens to fail. Against that knowledge, understanding, and given, here we have an administration which is implementing policies that are anathema to the founding of the country, in our view, my view. We have an administration implementing policies that are destructive to the way this country was founded, they are destructive to the opportunities for happiness and prosperity that this country has provided for 230 years, and we're alarmed by it. I see that a lot of other people are alarmed by it, too, but they don't have the guts to say so per se because they are afraid of having happen to them what has been happening to me with the White House and the media trying to destroy them or ruin their reputations or what have you.

So they're cowed and they have to say, "Ooh, we love the guy, love the family, ah, it's so wonderful, I voted for the guy. (whispering) His policies are disastrous. But we voted for him." Well, to me, this is not about hero worship, and it's not about anything historical to do with his election. He's all our presidents now. His policies are what matter, doesn't matter anything else as far as I'm concerned, he doesn't get a pass on implementing policies that destroy the nation's past and its founding simply because he's new, historic, a young, smart guy, lovable, and likable. Look past those things because it's the people of the country I'm concerned about. It is the country itself I'm concerned about, not a single individual. Debra Saunders, columnist for the San Francisco Chronicle, sent me a note during the program yesterday, and I got around to answering it afterwards. She wanted to take up this whole "I want him to fail" business. She asked, "Could you send me the original statement when you first said this?" And I said, "Sure." It was January 16th, it was a Friday, the top of the last hour of the program. I said the same things then that I said now, just said to you. And I said, "Why would I want somebody who is antithetical to the nation's founding, to freedom and so forth, why would I want somebody to succeed in destroying that?" It's perfectly sensible.

I got to thinking about this. The Federalist Papers and the constitutional convention debates are rife with arguments about the separation of powers. Now, stick with me on this, because this is a fundamental point to try to explain, especially to those of you who are new to the program, what it is that guides me. The whole theory of the separation of powers, meaning legislative branch, judicial branch, executive branch, was ingeniously based on human nature. Our Founding Fathers had studied history, and they knew that absolute power corrupts absolutely. So we divide power. We divide power between the states and the federal government. We divide power within the federal government. And we further divide power among three separate branches of government. We give each branch a different set of powers and incentives to protect their own prerogatives so they can keep an eye on each other. These are called checks and balances. And the liberals love talking about checks and balances very much.

The underlying assumption of this whole system is that the country functions better if everyone is of a skeptical bent of mind. That's what keeps the next guy honest. The whole reason that we have divided government instead of a king is that the issue is not about one government official succeeding. This country was not founded on the principle that the president is a king and above all the king must succeed. In fact, the system is designed to ensure that the president fails when he is wrong. That's the whole purpose of checks and balances. The whole purpose of dividing power, is to ensure the president fails when he's wrong. The Framers wanted the country to succeed, just as I do. If they wanted the president to succeed, they would not have saddled him with Congress, they wouldn't have saddled him with the courts, they wouldn't have saddled him with the free press, and they wouldn't have made him face reelection every four years. They would have made him a king who no one could oppose.

If our nation was all about a single individual succeeding simply because that individual must succeed regardless, we wouldn't have the form of government that we do. Now, conflating the president and the country -- and by that I mean, assuming that the president is always the country, assuming that the president always has the country's best interests at heart, such as the founders did, turns a functioning democracy into a robotic cult. I fear that that's what we have right now. We have a cult of fear and celebrity, robotic cult, that is epitomized in Warren Buffett, it's epitomized by Jack Welch, it's epitomized by Barton Biggs and Jim Cramer and anybody else who knows what they see is devastatingly wrong, is horribly wrong, but because there is a fear to oppose because the assumption is that Obama is the country, that Obama equals the best interests of the country simply because he's Obama, that's what gives you a cult. The worst part of it is that many of these people who are making hay over this Limbaugh-wants-Obama-to-fail garbage know full well, ladies and gentlemen, that what I just told you is the case.

This is not an honest debate going on here, as we have demonstrated in the first hour of the program with the Warren Buffett sound bites and the Barton Biggs sound bites and the Jim Cramer sound bites. It's not an honest debate. What's happening here is the most cynical kind of down and dirty politics by people who not only wanted George W. Bush to fail, but worked night and day to ensure that he failed. I say to you again, if the Founders wanted a situation where the government was about one official succeeding, then George Washington would have accepted the role he was he offered as king. But we have separation of powers. We have division of powers. All of this is designed to ensure that a president fails when he is wrong. The Framers wanted the country to succeed. Let me add to this, Byron York today writing at the DCExaminer.com: "'Why The Founding Fathers Would Want Obama's Plans to Fail' -- James Madison was not specifically contemplating Barack Obama, or Nancy Pelosi, when he wrote Federalist No. 63. But reading the document -- one of the seminal arguments in favor of adopting the US Constitution -- it’s clear Madison knew their type. And he knew they would come along again and again in American history, if Americans were lucky enough to have a long history. Obama and Pelosi, along with their most ardent supporters, are the types to see a crisis, like our current economic mess, as a 'great opportunity,' as the president put it last Saturday. They are the types, after a long period out of power, to attempt to use that 'great opportunity' to push through far-reaching changes in national policy that had only a tangential connection, if at all, to the crisis at hand. And they are the types the Founding Fathers wanted to stop.

"In the Federalist Papers, written 221 years ago, Madison addressed the need for a Senate to accompany the more populist House of Representatives. An upper body, he wrote, 'may be sometimes necessary as a defense to the people against their own temporary errors and delusions.' For the times when a political leader would attempt to capitalize on those errors and delusions, the Founders prescribed the Senate, with its members elected to terms three times the length of those in the House, originally chosen not by the people but by the state legislatures. From Federalist 63: 'There are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind?'"

Let me translate this for you. There are going to be times demagogues are going to come along, there are going to be times that people who are power hungry, who are going to take advantage of a crisis, to say they've got all the solutions, and they're going to ram all these things through. The solutions have nothing to do with the crisis. They're just selfish desires of the demagogue. The people, because of the crisis, are going to go along with it, even though in rational moments they would reject it all. We need an element to stop this. We need an element to protect the people from the kind of leaders who would abuse them, mislead them, and, ergo, one of those devices was the United States Senate. "Of course the economy is in crisis. But if Obama had his way, everything would be treated as if it were a crisis. Health care is a crisis. The environment is a crisis. Education is a crisis. In truth, those other areas are not crises, and the Senate’s job is to delay action on them until Obama’s power to stir popular passions fades."

I was just talking about this with Mr. Snerdley because we were in his office at the top of the hour, and there's Obama out there making his health care initiative today. Snerdley is getting all worked up about it, "My gosh, every day it's a new initiative, it's health care here, card check there, this and that and the other thing, where's the bill?" I said, "Snerdley, you're missing the point. There need not ever be legislation on this. Don't you understand what's happening here?" Let me tell you people. He goes out and says, (doing Obama impression) "I'm going to take advantage of this opportunity to do health care reform. Health care reform will get you a job, health care reform is one of the reasons the economy is tanking. You need better health care." Who doesn't? "Obama is going to get us health care, Mabel, Obama is going to get us health care! Obama, why, he's going to educate our kids better." So the approval numbers stay up. All the approval numbers need to stay up is the right rhetoric from Obama. He doesn't have to do anything, even though he's going to try to ram a lot of stuff down our throats, he doesn't have to. As long as he keeps the approval number up, then Warren Buffett is going to back down and Jack Welch is going to back down and Barton Biggs is going to back down, and everybody else is going to back down 'cause they're going to be afraid. So we have to remember, folks, we don't have a king. We have separation of powers. We have a system designed to ensure that the president fail when he should.

So you see, ladies and gentlemen, all I want and all we want is success for every American. If there's any worship on this program, it is not of a single man, it is of our Constitution and our other founding documents, and the Founding Fathers who gave them to us. Certainly not of a mortal human being today. I just wanted to go through this to explain it because I know for a fact the tune-in factor -- our cume, which is the total audience (they actually showed it to me yesterday) -- is literally geometric in its increase. As such, the people listening here who haven't heard before who come to the program with all of these erroneous misconceptions that they've been filled with by the critics of this program for all these 20 years.

The Economic Plan To Destory America: The Cloward-Piven Strategy -- Jim Simpson -- Circa 2008

2009-03-10T14:42:00.008-05:00

Part I

The Cloward-Piven Strategy

Liberals self-righteously wrap themselves in the mantle of public spirit. They ardently promote policies promising to deliver the poor and oppressed from their latest misery - policies which can only find solution in the halls of government. But no matter what issue one examines, over the last fifty plus years, the liberal prescription has almost always been a failure.

Why is this so? Why does virtually every liberal scheme result in ever-increasing public spending while conditions seem to get continually worse? There are a number of reasons:

The programs usually create adverse incentives. This is especially true in so-called "anti-poverty" programs. The beneficiaries find government subsidies a replacement for, rather than a supplement to, gainful employment and eventually become incapable of supporting themselves. This in turn creates a dependent culture with its attendant toxic behaviors which demand still more government "remedies."
The programs create their own industry, complete with scads of "think tanks" and "experts" who survive on government research grants. These are the aptly named "Beltway Bandits."
They create their own bureaucracies, whose managers conspire with interested members of Congress to continually increase program funding, regardless of merit
Members of Congress secure votes and campaign donations by extorting them from beneficiaries of such programs, either through veiled threats - "vote for me or those mean Republicans will wipe out your benefits" - or promises of still more bennies.

In short, all develop a vested interest in the program's survival. But if the result is always more and more government, of government, by government, and for government, with no solution in sight, then why do liberals always see government as the solution rather than the problem?

Similarly, liberals use government to promote legislation that imposes mandates on the private sector to provide further benefits for selected groups. But the results are even more disastrous. For example, weighing the laws or stacking the courts to favor unions may provide short term security or higher pay for unionized labor, but has ultimately resulted in the collapse of entire domestic industries.

Another example is health care. The Dems are always trying to impose backdoor socialized medicine with incremental legislation. Why do you suppose American healthcare is in such crisis? Answer: the government has already become too deeply involved. For example, many hospitals are closing their doors because they are overwhelmed with the burden of caring for indigent patients, illegal immigrants and vagrants who must, by law, be admitted like everyone else, despite the fact that they cannot pay for services. Read about it here -Destroying Our Health Care. The net result is reduced availability of care for everyone, exactly the opposite of what liberals claim to want.

To further complicate things, liberal jurists and lawyers have created new theories of liability that utilize the legal system as a means to further redistribute income. This too, has resulted in higher costs and prices in affected industries, higher insurance costs, or in some cases, complete elimination of products or services.

Liberals' endless pursuit of "rights" for different groups also does little but create increasing divisions in our society. Liberal policy pits old against young, men against women, ethnic and racial groups against one another, even American citizens against illegal aliens, all in the name of "equality." The only result is anger, tension and equal misery for all.

How does any of this improve our lot?

Finally, when companies relocate overseas to avoid the high cost of unionized labor and heavy domestic regulation, liberals sarcastically excoriate them for "outsourcing" America. Yet, when it comes to certain domestic industries, liberals in Congress suddenly become free marketers and choose to buy from overseas contractors rather than domestic suppliers. This happened most recently with a huge military contract being outrageously awarded to the heavily subsidized European consortium, AIRBUS, over America's own Boeing. Since liberals claim to be so determined to "save the American worker," what gives?

You have to take a step further back and ask some fundamental questions. Why is the liberal public policy record one of such unmitigated disaster? I mean, even the worst batter hits one occasionally. No one bats zero. No one that is, except liberals.

Prior to the Republican takeover in Congress in 1994, Democrats had over fifty years of virtually unbroken power in Congress with substantial majorities most of the time. With all the time and money in the world - trillions spent - they couldn't fix a single thing, not one. Today's liberal has the same complaints, and the same old tired solutions. Can a group of smart people, studying issue after issue for years on end, with virtually unlimited resources at their command, not come up with a single policy that works? Why are they chronically incapable?

Why?

When things go bad all the time, despite the best efforts of all involved, I suggest to you something else is at work - something deeper, more malevolent.

I submit to you that it is not a mistake, the failure is deliberate!

There is a method to the madness, and the method even has a name: the Cloward-Piven Strategy. It was first elucidated in the 1960s by a pair of radical leftist Columbia University professors, Richard Andrew Cloward and Frances Fox Piven. Former radical-turned-conservative, David Horowitz, describes it thusly:

The strategy of forcing political change through orchestrated crisis ... the "Cloward-Piven Strategy" seeks to hasten the fall of capitalism by overloading the government bureaucracy with a flood of impossible demands, thus pushing society into crisis and economic collapse.

Part II

Exploring those organizations created to implement the Cloward-Piven strategy and their direct ties to Barack Obama and his presidential candidacy

America waits with baited breath while Washington struggles to bring the U.S. economy back from the brink of disaster. But many of those same politicians caused the crisis, and if left to their own devices will do so again.

Despite the mass media news blackout, a series of books, talk radio and the blogosphere have managed to expose Barack Obama's connections to his radical mentors – Weather Underground bombers William Ayers and Bernardine Dohrn, Communist Party member Frank Marshall Davis and others. David Horowitz and his Discover the Networks.org have also contributed a wealth of information and have noted Obama's radical connections since the beginning.

Yet, no one to my knowledge has yet connected all the dots between Barack Obama and the Radical Left. When seen together, the influences on Obama's life comprise a who's who of the radical leftist movement, and it becomes painfully apparent that not only is Obama a willing participant in that movement, he has spent most of his adult life deeply immersed in it.

But even this doesn't fully describe the extreme nature of this candidate. He can be tied directly to a malevolent overarching strategy that has motivated many, if not all, of the most destructive radical leftist organizations in the United States since the 1960s.

The Cloward-Piven Strategy of Orchestrated Crisis

In an earlier post, I noted the liberal record of unmitigated legislative disasters, the latest of which is now being played out in the financial markets before our eyes. Before the 1994 Republican takeover, Democrats had sixty years of virtually unbroken power in Congress – with substantial majorities most of the time. Can a group of smart people, studying issue after issue for years on end, with virtually unlimited resources at their command, not come up with a single policy that works? Why are they chronically incapable?

Why?

One of two things must be true. Either the Democrats are unfathomable idiots, who ignorantly pursue ever more destructive policies despite decades of contrary evidence, or they understand the consequences of their actions and relentlessly carry on anyway because they somehow benefit.

I submit to you they understand the consequences. For many it is simply a practical matter of eliciting votes from a targeted constituency at taxpayer expense; we lose a little, they gain a lot, and the politician keeps his job. But for others, the goal is more malevolent – the failure is deliberate. Don't laugh. This method not only has its proponents, it has a name: the Cloward-Piven Strategy. It describes their agenda, tactics, and long-term strategy.

The Strategy was first elucidated in the May 2, 1966 issue of The Nation magazine by a pair of radical socialist Columbia University professors, Richard Andrew Cloward and Frances Fox Piven. David Horowitz summarizes it as:

The strategy of forcing political change through orchestrated crisis. The "Cloward-Piven Strategy" seeks to hasten the fall of capitalism by overloading the government bureaucracy with a flood of impossible demands, thus pushing society into crisis and economic collapse.

Cloward and Piven were inspired by radical organizer [and Hillary Clinton mentor] Saul Alinsky:

"Make the enemy live up to their (sic) own book of rules," Alinsky wrote in his 1971 book Rules for Radicals. When pressed to honor every word of every law and statute, every Judeo-Christian moral tenet, and every implicit promise of the liberal social contract, human agencies inevitably fall short. The system's failure to "live up" to its rule book can then be used to discredit it altogether, and to replace the capitalist "rule book" with a socialist one. (Courtesy Discover the Networks.org)

Newsmax rounds out the picture:

Their strategy to create political, financial, and social chaos that would result in revolution blended Alinsky concepts with their more aggressive efforts at bringing about a change in U.S. government. To achieve their revolutionary change, Cloward and Piven sought to use a cadre of aggressive organizers assisted by friendly news media to force a re-distribution of the nation's wealth.

In their Nation article, Cloward and Piven were specific about the kind of "crisis" they were trying to create:

By crisis, we mean a publicly visible disruption in some institutional sphere. Crisis can occur spontaneously (e.g., riots) or as the intended result of tactics of demonstration and protest which either generate institutional disruption or bring unrecognized disruption to public attention.

No matter where the strategy is implemented, it shares the following features:

The offensive organizes previously unorganized groups eligible for government benefits but not currently receiving all they can.
The offensive seeks to identify new beneficiaries and/or create new benefits.
The overarching aim is always to impose new stresses on target systems, with the ultimate goal of forcing their collapse.

Capitalizing on the racial unrest of the 1960s, Cloward and Piven saw the welfare system as their first target. They enlisted radical black activist George Wiley, who created the National Welfare Reform Organization (NWRO) to implement the strategy. Wiley hired militant foot soldiers to storm welfare offices around the country, violently demanding their "rights." According to a City Journal article by Sol Stern, welfare rolls increased from 4.3 million to 10.8 million by the mid-1970s as a result, and in New York City, where the strategy had been particularly successful, "one person was on the welfare rolls… for every two working in the city's private economy."

According to another City Journal article titled "Compassion Gone Mad":

The movement's impact on New York City was jolting: welfare caseloads, already climbing 12 percent a year in the early sixties, rose by 50 percent during Lindsay's first two years; spending doubled… The city had 150,000 welfare cases in 1960; a decade later it had 1.5 million.

The vast expansion of welfare in New York City that came of the NWRO's Cloward-Piven tactics sent the city into bankruptcy in 1975. Rudy Giuliani cited Cloward and Piven by name as being responsible for "an effort at economic sabotage." He also credited Cloward-Piven with changing the cultural attitude toward welfare from that of a temporary expedient to a lifetime entitlement, an attitude which in-and-of-itself has caused perhaps the greatest damage of all.

Cloward and Piven looked at this strategy as a gold mine of opportunity. Within the newly organized groups, each offensive would find an ample pool of foot soldier recruits willing to advance its radical agenda at little or no pay, and expand its base of reliable voters, legal or otherwise. The radicals' threatening tactics also would accrue an intimidating reputation, providing a wealth of opportunities for extorting monetary and other concessions from the target organizations. In the meantime, successful offensives would create an ever increasing drag on society. As they gleefully observed:

Moreover, this kind of mass influence is cumulative because benefits are continuous. Once eligibility for basic food and rent grants is established, the drain on local resources persists indefinitely.

The next time you drive through one of the many blighted neighborhoods in our cities, or read of the astronomical crime, drug addiction, and out-of-wedlock birth rates, or consider the failed schools, strapped police and fire resources of every major city, remember Cloward and Piven's thrill that "…the drain on local resources persists indefinitely."

ACORN, the new tip of the Cloward-Piven spear

In 1970, one of George Wiley's protégés, Wade Rathke – like Bill Ayers, a member of the radical Students for a Democratic Society (SDS) – was sent to found the Arkansas Community Organizations for Reform Now. While NWRO had made a good start, it alone couldn't accomplish the Cloward-Piven goals. Rathke's group broadened the offensive to include a wide array of low income "rights." Shortly thereafter they changed "Arkansas" to "Association of" and ACORN went nationwide.

Today ACORN is involved in a wide array of activities, including housing, voting rights, illegal immigration and other issues. According to ACORN's website: "ACORN is the nation's largest grassroots community organization of low- and moderate-income people with over 400,000 member families organized into more than 1,200 neighborhood chapters in 110 cities across the country," It is perhaps the largest radical group in the U.S. and has been cited for widespread criminal activity on many fronts.

--Voting

On voting rights, ACORN and its voter mobilization subsidiary, Project Vote, have been involved nationwide in efforts to grant felons the vote and lobbied heavily for the Motor Voter Act of 1993, a law allowing people to register at motor vehicle departments, schools, libraries and other public places. That law had been sought by Cloward and Piven since the early1980s and they were present, standing behind President Clinton at the signing ceremony.

ACORN's voter rights tactics follow the Cloward-Piven Strategy:

Register as many democrat voters as possible, legal or otherwise and help them vote, multiple times if possible.
Overwhelm the system with fraudulent registrations using multiple entries of the same name, names of deceased, random names from the phone book, even contrived names.
Make the system difficult to police by lobbying for minimal identification standards.

In this effort, ACORN sets up registration sites all over the country and has been frequently cited for turning in fraudulent registrations, as well as destroying republican applications. In the 2004-2006 election cycles alone, ACORN was accused of widespread voter fraud in 12 states. It may have swung the election for one state governor.

ACORN's website brags: "Since 2004, ACORN has helped more than 1.7 million low- and moderate-income and minority citizens apply to register to vote." Project vote boasts 4 million. I wonder how many of them were named Jive Turkey. For the 2008 cycle, ACORN and Project Vote have pulled out all the stops. Given their furious nationwide effort, it is not inconceivable that this presidential race could be decided by fraudulent votes alone.

Barack Obama ran ACORN's Project Vote in Chicago and his highly successful voter registration drive was credited with getting the disgraced former Senator Carol Moseley-Braun elected. Newsmax reiterates Cloward and Piven's aspirations for ACORN's voter registration efforts:

By advocating massive, no-holds-barred voter registration campaigns, they [Cloward & Piven] sought a Democratic administration in Washington, D.C. that would re-distribute the nation's wealth and lead to a totalitarian socialist state.

--Illegal Immigration

As I have written elsewhere, the Radical Left's offensive to promote illegal immigration is "Cloward-Piven on steroids." ACORN is at the forefront of this movement as well, and was a leading organization among a broad coalition of radical groups, including Soros' Open Society Institute, the Service Employees International Union (ACORN founder Wade Rathke also runs a SEIU chapter), and others, that became the Coalition for Comprehensive Immigration Reform. CCIR fortunately failed to gain passage for the 2007 illegal immigrant amnesty bill, but its goals have not changed.

The burden of illegal immigration on our already overstressed welfare system has been widely documented. Some towns in California have even been taken over by illegal immigrant drug cartels. The disease, crime and overcrowding brought by illegal immigrants places a heavy burden on every segment of society and every level of government, threatening to split this country apart at the seams. In the meantime, radical leftist efforts to grant illegal immigrants citizenship guarantee a huge pool of new democrat voters. With little border control, terrorists can also filter in.

Obama aided ACORN as their lead attorney in a successful suit he brought against the Illinois state government to implement the Motor Voter law there. The law had been resisted by Republican Governor Jim Edgars, who feared the law was an opening to widespread vote fraud.

His fears were warranted as the Motor Voter law has since been cited as a major opportunity for vote fraud, especially for illegal immigrants, even terrorists. According to the Wall Street Journal: "After 9/11, the Justice Department found that eight of the 19 hijackers were registered to vote…"

ACORN's dual offensives on voting and illegal immigration are handy complements. Both swell the voter rolls with reliable democrats while assaulting the country ACORN seeks to destroy with overwhelming new problems.

--Mortgage Crisis

And now we have the mortgage crisis, which has sent a shock wave through Wall Street and panicked world financial markets like no other since the stock market crash of 1929. But this is a problem created in Washington long ago. It originated with the Community Reinvestment Act (CRA), signed into law in 1977 by President Jimmy Carter. The CRA was Carter's answer to a grassroots activist movement started in Chicago, and forced banks to make loans to low income, high risk customers. PhD economist and former Texas Senator Phil Gramm has called it: "a vast extortion scheme against the nation's banks."

ACORN aggressively sought to expand loans to low income groups using the CRA as a whip. Economist Stan Leibowitz wrote in the New York Post:

In the 1980s, groups such as the activists at ACORN began pushing charges of "redlining"-claims that banks discriminated against minorities in mortgage lending. In 1989, sympathetic members of Congress got the Home Mortgage Disclosure Act amended to force banks to collect racial data on mortgage applicants; this allowed various studies to be ginned up that seemed to validate the original accusation.

In fact, minority mortgage applications were rejected more frequently than other applications-but the overwhelming reason wasn't racial discrimination, but simply that minorities tend to have weaker finances.

ACORN showed its colors again in 1991, by taking over the House Banking Committee room for two days to protest efforts to scale back the CRA. Most significant of all, ACORN was the driving force behind a 1995 regulatory revision pushed through by the Clinton Administration that greatly expanded the CRA and laid the groundwork for the Fannie Mae, Freddie Mac borne financial crisis we now confront. Barack Obama was the attorney representing ACORN in this effort. With this new authority, ACORN used its subsidiary, ACORN Housing, to promote subprime loans more aggressively.

As a New York Post article describes it:

A 1995 strengthening of the Community Reinvestment Act required banks to find ways to provide mortgages to their poorer communities. It also let community activists intervene at yearly bank reviews, shaking the banks down for large pots of money.

Banks that got poor reviews were punished; some saw their merger plans frustrated; others faced direct legal challenges by the Justice Department.

Flexible lending programs expanded even though they had higher default rates than loans with traditional standards. On the Web, you can still find CRA loans available via ACORN with "100 percent financing ... no credit scores ... undocumented income ... even if you don't report it on your tax returns." Credit counseling is required, of course.

Ironically, an enthusiastic Fannie Mae Foundation report singled out one paragon of nondiscriminatory lending, which worked with community activists and followed "the most flexible underwriting criteria permitted." That lender's $1 billion commitment to low-income loans in 1992 had grown to $80 billion by 1999 and $600 billion by early 2003.

The lender they were speaking of was Countrywide, which specialized in subprime lending and had a working relationship with ACORN. Countrywide had many friends on Capitol Hill as well.

Investor's Business Daily added:

The revisions also allowed for the first time the securitization of CRA-regulated loans containing subprime mortgages. The changes came as radical "housing rights" groups led by ACORN lobbied for such loans. ACORN at the time was represented by a young public-interest lawyer in Chicago by the name of Barack Obama. (Emphasis, mine.)

Since these loans were to be underwritten by the government sponsored Fannie Mae and Freddie Mac, the implicit government guarantee of those loans absolved lenders, mortgage bundlers and investors of any concern over the obvious risk. As Bloomberg reported: "It is a classic case of socializing the risk while privatizing the profit."

And if you think Washington policy makers cared about ACORN's negative influence, think again. Before this whole mess came down, a Democrat-sponsored bill on the table would have created an "Affordable Housing Trust Fund," granting ACORN access to approximately $500 million in Fannie Mae and Freddie Mac revenues with little or no oversight.

Even now, unbelievably – on the brink of national disaster – Democrats have insisted ACORN benefit from bailout negotiations! Senator Lindsay Graham reported last night (9/25/08) in an interview with Greta Van Susteren of On the Record that Democrats want 20 percent of the bailout money to go to ACORN!

This entire fiasco represents perhaps the pinnacle of ACORN's efforts to advance the Cloward-Piven Strategy and is a stark demonstration of the power they wield in Washington.

Enter Barack Obama

In attempting to capture the significance of Barack Obama's Radical Left connections and his relation to the Cloward Piven strategy, I constructed following flow chart. It is by no means complete. There are simply too many radical individuals and organizations to include them all here. But these are perhaps the most significant.

The chart puts Barack Obama at the epicenter of an incestuous stew of American radical leftism. Not only are his connections significant, they practically define who he is. Taken together, they constitute a who's who of the American radical left, and guiding all is the Cloward-Piven strategy.

Conspicuous in their absence are any connections at all with any other group, moderate, or even mildly leftist. They are all radicals, firmly bedded in the anti-American, communist, socialist, radical leftist mesh.

--Saul Alinsky

Most people are unaware that Barack Obama received his training in "community organizing" from Saul Alinsky's Industrial Areas Foundation. But he did. In and of itself that marks his heritage and training as that of a radical activist. One really needs go no further. But we have.

--Bill Ayers

Obama objects to being associated with SDS bomber Bill Ayers, claiming he is being smeared with "guilt by association." But they worked together at the Woods Fund. Today the Wall Street Journal added substantially to our knowledge by describing in great detail Obama's work over five years with SDS bomber Bill Ayers on the board of a non-profit, the Chicago Annenberg Challenge, to push a radical agenda on public school children. As Stanley Kurtz states: "…the issue here isn't guilt by association; it's guilt by participation. As CAC chairman, Mr. Obama was lending moral and financial support to Mr. Ayers and his radical circle. That is a story even if Mr. Ayers had never planted a single bomb 40 years ago."

Also included in the mix is John and Theresa Heinz Kerry's favorite charity, the Tides Foundation. A partial list of Tides grants tells you all you need to know: ACLU, ACORN, Center for American Progress, Center for Constitutional Rights (a communist front,) CAIR, Earth Justice, Institute for Policy Studies (KGB spy nest), National Lawyers Guild (oldest communist front in U.S.), People for the Ethical Treatment of Animals (PETA), and practically every other radical group there is. ACORN's Wade Rathke runs a Tides subsidiary, the Tides Center.

--Carl Davidson and the New Party

We have heard about Bomber Bill, but we hear little about fellow SDS member Carl Davidson. According to Discover the Networks, Davidson was an early supporter of Barack Obama and a prominent member of Chicago's New Party, a synthesis of CPUSA members, Socialists, ACORN veterans and other radicals. Obama sought and received the New Party's endorsement, and they assisted with his campaign. The New Party also developed a strong relationship with ACORN. As an excellent article on the New Party observes: "Barack Obama knew what he was getting into and remains an ideal New Party candidate."

--George Soros

The chart also suggests the reason for George Soros' fervent support of Obama. The President of his Open Society Institute is Aryeh Neier, founder of the radical Students for a Democratic Society (SDS). As mentioned above, three other former SDS members had extensive contact with Obama: Bill Ayers, Carl Davidson and Wade Rathke. Surely Aryeh Neier would have heard from his former colleagues of the promising new politician. More to the point, Neier is firmly committed to supporting the hugely successful radical organization, ACORN, and would be certain back their favored candidate, Barack Obama.

--ACORN

Obama has spent a large portion of his professional life working for ACORN or its subsidiaries, representing ACORN as a lawyer on some of its most critical issues, and training ACORN leaders. Stanley Kurtz's excellent National Review article, "Inside Obama's Acorn." also describes Obama's ACORN connection in detail. But I can't improve on Obama's own words:

I've been fighting alongside ACORN on issues you care about my entire career (emphasis added). Even before I was an elected official, when I ran Project Vote voter registration drive in Illinois, ACORN was smack dab in the middle of it, and we appreciate your work. - Barack Obama, Speech to ACORN, November 2007 (Courtesy Newsmax.)

In another excellent article on Obama's ACORN connections, Newsmax asks a nagging question:

It would be telling to know if Obama, during his years at Columbia, had occasion to meet Cloward and study the Cloward-Piven Strategy.

I will put it more bluntly: Barack Obama is fully aware of the Cloward-Piven strategy and has actively worked to achieve its goals for most of his adult life.

I ask you, is it possible ACORN would train Obama to take leadership positions within ACORN without telling him what he was training for? Is it possible ACORN would put Obama in leadership positions without clueing him into what his purpose was?? Is it possible that this most radical of organizations would put someone in charge of training its trainers, without him knowing what it was he was training them for???

As a community activist for ACORN; as a leadership trainer for ACORN; as a lead organizer for ACORN's Project Vote; as an attorney representing ACORN's successful efforts to impose Motor Voter regulations in Illinois; as ACORN's representative in lobbying for the expansion of high risk housing loans through Fannie Mae and Freddie Mac that led to the current crisis; as a recipient of their assistance in his political campaigns – both with money and campaign workers; it is inconceivable that he was unaware of ACORN's true goals. It is inconceivable he was unaware of the Cloward-Piven Strategy.

Fast-forward to 2005 when an obsequious, servile and scraping Daniel Mudd, CEO of Fannie Mae spoke at the Congressional Black Caucus swearing in ceremony for newly-elected Illinois Senator, Barack Hussein Obama. Mudd called, the Congressional Black Caucus "our family" and "the conscience of Fannie Mae."

In 2005, Republicans sought to reign in Fannie and Freddie. Senator John McCain was at the forefront of that effort. But it failed due to an intense lobbying effort put forward by Fannie and Freddie.

In his few years as a U.S. senator, Obama has received campaign contributions of $126,349, from Fannie and Freddie, second only to the $165,400 received by Senator Chris Dodd, who has been getting donations from them since 1988. What makes Obama so special?

His closest advisers are a dirty laundry list of individuals at the heart of the financial crisis: former Fannie Mae CEO Jim Johnson; Former Fannie Mae CEO and former Clinton Budget Director Frank Raines; and billionaire failed Superior Bank of Chicago Board Chair Penny Pritzger.

Johnson had to step down as adviser on Obama's V.P. search after this gem came out:

An Office of Federal Housing Enterprise Oversight (OFHEO) report[1] from September 2004 found that, during Johnson's tenure as CEO, Fannie Mae had improperly deferred $200 million in expenses. This enabled top executives, including Johnson and his successor, Franklin Raines, to receive substantial bonuses in 1998.[2] A 2006 OFHEO report[3] found that Fannie Mae had substantially under-reported Johnson's compensation. Originally reported as $6-7 million, Johnson actually received approximately $21 million.

Obama denies ties to Raines but the Washington Post calls him a member of "Obama's political circle." Raines and Johnson were fined $3 million by the Office of Federal Housing Oversight for their manipulation of Fannie books. The fine is small change however, compared to the $50 million Raines was able to obtain in improper bonuses as a result of juggling the books.

Most significantly, Penny Pritzger, the current Finance Chairperson of Obama's presidential campaign helped develop the complicated investment bundling of subprime securities at the heart of the meltdown. She did so in her position as owner and board chair of Superior Bank. The Bank failed in 2001, one of the largest in recent history, wiping out $50 million in life savings of the bank's approximately 1,400 customers. She was named in a RICO class action law suit but doesn't seem to have come out of it too badly.

As a young attorney in the 1990s, Barack Obama represented ACORN in Washington in their successful efforts to expand Community Reinvestment Act (CRA) authority. In addition to making it easier for ACORN groups to force banks into making risky loans, this also paved the way for banks like Superior to package mortgages as investments, and for the Government Sponsored Enterprises Fannie Mae and Freddie Mac to underwrite them. These changes created the conditions that ultimately lead to the current financial crisis.

Did they not know this would occur? Were these smart people, led by a Harvard graduate, unaware of the Econ 101 concept of moral hazard that results from the government making implicit guarantees to underwrite private sector financial risk? They should have known that freeing the mortgage market of risk, calamity was sure to ensue. I think they did.

Barack Obama, the Cloward-Piven candidate, no matter how he describes himself, has been a radical activist for most of his political career. That activism has been in support of organizations and initiatives that at their heart seek to tear the pillars of this nation asunder in order to replace them with their demented socialist vision. Their influence has spread so far and so wide that despite their blatant culpability in the current financial crisis, they are able to manipulate Capital Hill politicians to cut them into $140 billion of the bailout pie!

God grant those few responsible yet remaining in Washington, DC the strength to prevent this massive fraud from occurring. God grant them the courage to stand up in the face of this Marxist tidal wave.

And God save us from Barack Obama.

Part III

Conspiracy of the Lemmings: Barack Obama and the Radical Left's Strategy of Manufactured Crisis

Note: I am indebted to the incredible efforts of many bloggers, who did the yeoman's work of ferreting out many of the hard-to-find facts in this article. I particularly want to thank David Horowitz and his Discover the Networks team, Trevor Loudon of New Zeal blog, Cliff Kincaid, Herb Romerstein, Max Friedman, and others too numerous to mention. Links to all their work is provided where appropriate.

--Introduction

The United States of America is the world's marketplace. Without the worldwide trade generated by American demand, the international marketplace will fail. Today we are witnessing an undeniable demonstration of this fact as world markets reel in response to our domestic financial crisis. This lesson must be burnt into our collective conscience. Our nation is the last repository of free market economic principles, and a fundamental change in our government toward socialism will spell worldwide economic disaster from which we may never recover.

Yet this is exactly the endgame of the American radical Left-- increasingly indistinguishable from today's Democrat Party --and offers the only internally consistent explanation for their historic obsession with divisive policy. From their early support of Hitler to their central role in the current financial crisis, the Left's contribution to domestic and foreign policy at federal, state and local levels can only be described as wantonly destructive. Their takeover of schools and popular culture has been equally toxic. Their environmental radicalism has spawned the energy crisis, while offering no viable alternatives. It defies logic.

But there is logic, a deadly logic, and in the '60's, two radicals gave it a name: the Cloward-Piven Strategy. As explained in my prior article, the goal was to create a groundswell of demands for public services to overwhelm government, create crisis and usher in a widespread call for fundamental economic reform at the federal level, with socialism the ultimate goal.

Democrats embrace the rhetoric of "compassion," but look past the rhetoric to the results. This country is polarized as never before because of their relentless agitation for extremist positions on every issue, and the outrageous tactics they use to promote them. But while Radical Saul Alinsky's tactics guide today's Democrat electoral game plan, the Cloward-Piven Strategy describes the overarching goal of almost every leftwing organization/movement/ideal today.

--How do they Survive?

These organizations rarely produce anything of value, yet are extremely adept at not only surviving but flourishing. Many receive their financial backbone from prominent philanthropies. They also receive subsidies and tax breaks with the help of friends in federal, state and local government. This fact is unknown to most voters, who would be outraged if they fully understood how their tax dollars were being spent. For example, the radical group, ACORN, responsible for widespread voter fraud this year, gets about 40 percent of its revenues from federal, state and local government.

Our mass media is mostly to blame for the current state of affairs. The Left's strategies could not survive the light of day. Radicals require a sympathetic media to deliver their message in an acceptable fashion and actively suppress inconvenient facts that reveal these organizations' true character and agenda. Barack Obama's presidential campaign is perhaps the most poignant current example of this. Without mass media's shamelessly biased support, he would still be community organizing, or perhaps in jail.

It is a tangled web of radical interconnections with the ultimate goal being an end to our Constitutional framework, the fall of our Republic and its replacement with a radical vision of socialist utopia-- finally removing the last major roadblock to world socialism.

These radical individuals are highly motivated, in many cases intelligent and talented, and sometimes even driven by what they would describe as altruistic motives. Yet the impacts of socialist central planning are inarguably destructive.

Marx may have had some interesting insights on history, but despite his ponderous three volume "Das Kapital" he was no economist. Instead, Kapital provided the intellectual excuse for Marx's anarchistic Communist Manifesto.

And the severe verdict of history on his perverted vision is without equal: over 100 million people murdered by their own governments in times of peace, more than all the wars of history combined. The rest face abject poverty, mass starvation, economic and environmental ruin, all overseen by smothering, indescribably brutal governments-- a grey, barren existence for all but the apparatchiks.

So why are so many Westerners infatuated with this demented vision?

--Entrepreneurial Parasites

The high-minded types are driven by a galling sense of superiority. They are addicted to their own egos. They know better and can defy the verdict of history because people as smart as they are weren't around when Russia, China, Vietnam, Cambodia, North Korea, Ethiopia, Angola, Zimbabwe, Zambia, Congo, Nicaragua, Cuba, Venezuela, etc., went Red.

Living well in affluent, capitalist America, it is all theoretical, so they can indulge their fantasies while promoting this destructive agenda with impunity. For these people ignorance is literally a blessing, for if they soberly analyzed their ego-driven beliefs, they would be embarrassed.

If you examine their pasts closely, you learn that most of these people also came from upper class backgrounds. PhD Chemistry Professor George Wiley, the black radical who led Cloward and Piven's National Welfare Rights Organization, was a well-to-do son of a Rhode Island family.

Wade Rathke, the NWRO veteran who started ACORN, was from a similarly well-to-do background, although he dropped out of Williams College.

Obama's radical friend Bill Ayers' family was very wealthy. Looking at his arrest photos, and listening to his smug self-righteousness, you really get the impression that he was little more than an arrogant, spoiled brat, with a titanic sense of entitlement that allowed him to rationalize mass murder.

This is a familiar story throughout the American left and indeed with many of the most infamous communist leaders around the world. For example, Communist China's first leader, Mao Zedong, the inspiration for Ayers and many other radicals, was son of the wealthiest man in his home town.

According to the incredible biography, Mao: the Unknown Story, he was lazy, arrogant, and refused to work, despite his father's repeated attempts to find him suitable employment. He finally saw an opportunity for real advancement working for the Soviets. During the Long March he was carried by porters.

As young idealists, many of these people are initially snared into this ideology by the exaggerated sense of self-importance that is often a characteristic of youth. But we all have to live, and as they grow up they discover that the radical profession can be a pretty lucrative racket. Despite their high-minded rhetoric about saving the poor and oppressed, communists and socialists are what I call entrepreneurial parasites.

Consider what they demand of us: sacrifice of all worldly goods to the state, penurious, barren lifstyles, slavish observance of their dictates and full-time commitment to the well-being of the state, while our jobs, careers, industries, the environment, even our lives are threatened. But how do they live?

Obama's pal Ayers, who describes himself as a "small 'c' communist," lives in a lavish home, in the upscale Hyde Park neighborhood, with a six-figure (or more) income. It is easy to see how, given the open spigot of money his organizations receive from the various non-profit funds he's ingratiated himself to. Bill Ayers father, Tom, had been CEO of Commonwealth Edison, so he's used to money, and later developments in his career point to a hand up from Daddy.

Barack lives in Hyde Park too. It is difficult to find anyone in the American Marxist elite who doesn't fully enjoy the fruits of capitalism in his or her personal life. In fact, Obama's early career seems to have been centered on dispensing foundation money as a means to secure his career in politics. Here and here are perfect examples. But more about this later.

Marxist austerity is only meant for the rest of us.

This taste for wealth is not limited to American socialists. Every socialist dictator from Stalin to Saddam has lived in opulent surroundings with multiple estates, scores of servants and every kind of luxury and indulgence available to them.

See for example, Gorbachev's dacha in Foros, Crimea; a testament to communist modesty if ever there was one. Same with all the leaders of communist countries. Indeed, Bulgarian defector Georgi Markov was murdered for his extensive reporting on the opulent, decadent lifestyles of Bulgarian Communist leaders. It's a good racket, if you don't mind blood.

While socialist leaders live in lavish style, in every country where socialist policies are imposed, they measurably worsen the lives of everyday citizens in direct proportion to their scope. Even countries with vast natural resources, like Russia, founder because their economies are constructed on the fatally flawed economic principles of socialism.

Despite this, they still manage to live on, in many cases hanging by mere threads for years.

How?

The dirty little secret of socialism is that it cannot survive without capitalism-- capitalist countries provide the resources necessary for these socialist governments to continue. In addition to providing a market for their goods, Western nations keep socialist countries afloat through grants and loans from the World Bank, the U.S. Agency for International Development and other governmental institutions, as well as huge investments by private companies.

Even China, widely misunderstood as the next "free market," only practices market economics one-way in international trade while maintaining iron fisted central planning internally, and could not maintain its current level of economic growth without the markets provided by the United States and other Western countries.

Finally, there is a vast network of American enterprises, owned covertly by foreign dictators, whose true purpose is to provide underground income for these leaders and their socialist governments, while offering convenient cover for industrial and military spies. This fact is rarely mentioned and largely unknown.

At its core, socialism can only be parasitic. It cannot survive without its capitalist host. Therefore, if the United States becomes a socialist country, worldwide capital will soon dry up. Remaining market economies around the world will succumb either to their own internal socialist movements or direct military threat from abroad. Without the protective umbrella of American military might, they will have no other choice.

Without the markets and resources capitalist economies provide, the many socialist countries that have survived on our largesse until now will find their income stream shut off. The world will plunge into an unprecedented, cataclysmic depression. This depression will be of indeterminate length because the wherewithal for recovery-- a large capitalist economy --will no longer exist. With a world controlled by parasites, the host will die.

At this point even the parasites will be in danger. The socialists' internationalist agenda truly is a Conspiracy of the Lemmings. It is not merely a criminal conspiracy, it is criminally insane.

Barack Hussein Obama has been chosen as standard bearer to bring this agenda to fruition here. If he is elected we can expect a sea change in Washington. But it will not be for the better. The socialist economic agenda he has publicly articulated is enough in the current financial crisis to plunge our economy into deep recession. The disarmament agenda he has publicly articulated is enough to strip us of the meager defenses we currently have against a rogue missile attack, and Iran has already telegraphed plans to launch such an attack.

What is even more frightening is the agenda he has not shared, but is implicit in his radical upbringing, his radical connections, and his limited but demonstrative experience.

--Obama's Radical Roots

Are we beating this subject to death? Sorry, we have to. And there's much more, if you still need convincing. Obama hates being "associated" with radical individuals and organizations. But the truth is he hasn't been associated with them at all, he has been immersed in them. He is one of them. And it goes back to his youth.

There is no doubt that "Frank" in Obama's Dreams from My Father is longtime communist Frank Marshall Davis. It is probable that Davis convinced Obama to initiate his career in radical-friendly Chicago-- birthplace of the American Communist Party --where Davis was a very active communist party member before moving to Hawaii.

Obama was inspired by Chicago's first black mayor, Harold Washington, even writing for a job in his administration. Washington's successful campaign relied on a coalition of the American Communist Party, Democratic Socialists of America and other radicals. Washington may have been a secret communist party member himself.

Finally, given his unwillingness to release his birth certificate, some are conjecturing that Davis may be Obama's father. If so, it explains a lot about Obama's very radical political orientation. But it is not necessary in order to make the connections.

From Obama's earliest days as a community organizer and throughout his political career, he has been involved with and supported by a broad network of radical groups. It is likely that he was similarly influenced in college, but since he won't release any information about classes, grades, teachers, clubs or affiliations-- no information whatsoever --we don't have a complete picture.

--Who Sent You?

There is an old story about getting into Chicago politics that ends with the quote: "We don't want nobody that nobody sent." According to this article, the person who "sent" Obama was former Students for a Democratic Society (SDS) Weather Underground bomber Bill Ayers. The reasons are many and compelling.

Chicago Annenberg Challenge (CAC) -- Ayers chaired the Chicago School Reform Collaborative which was responsible for recruiting Barack Obama to chair the board of CAC in 1995. Barack remained chairman until 1999 and stayed with the board until CAC folded in 2001. Obama and Ayers shared the same 50 X 50 3rd floor office for three years when Obama chaired the CAC. How is it they didn't know each other? By the way, the CAC was not endowed with $49.2 million, as initially reported. Matching grants and tax dollars brought the total to three times that amount.

In addition to his work on CAC, Ayers ran the Small Schools Workshop out of the same address. Another former SDSer, Mike Klonsky co-chaired the Workshop and shared that office as well. Remember that name. Despite Chicago's failing schools, this project was intended to create charter schools focused not on basic skills, but developing young anti-capitalist partisans.

As chairman of CAC, working from the same office, Obama gave over $1 million to the Small Schools Workshop run by Ayers and Klonsky. Oh yes, Klonksy's wife, Susan worked there too. She was also a former SDS member. Just one big happy family. Obama apparently also managed to show his appreciation to Rev. Jeremiah Wright's causes with CAC largesse.

But Obama's relationship with Ayers may go back much further than that. According to NationMaster.com encyclopedia:

The [Chicago School Reform] Collaborative was the operative on the ground body of the Challenge. It was made up of representatives of various constituencies in the Chicago school reform movement. That reform movement had begun in 1987 in the wake of an unpopular strike by Chicago teachers. Bill Ayers was active in that reform effort through a group called the Alliance for Better Chicago Schools, or ABCs. ABCs was an alliance of various activists and reform groups that included the Developing Communities Project which Barack Obama headed up at the time as well as Chicago United, a business sector group, that was headed up by Thomas Ayers, father of Bill Ayers. Barack and Obama redirect here.(Emphases mine)

Thomas Ayers was the liberal former CEO of the Consolidated Edison (ConEd) power utility and was very active in Chicago education issues. ConEd was a client of Sidley & Austin, a prestigious Chicago law firm, and senior partner Howard Trienens was chief counsel to ConEd. Trienens also worked with Tom Ayers on the Board of Northwestern University. Bernardine Dohrn worked at Sidley until 1988, despite no law license or experience and was hired, according to Trienens, as a favor to "friends." She subsequently got a teaching job at Northwestern. Another favor?

Obama left for Harvard in 1988 but returned the next summer to intern with Sidley. How did he get that job? Michelle Robinson (Obama) also worked for Sidley at the time and was Obama's supervisor. They were married in 1992. Given the time they spent at the same firm, Michelle probably knew Bernardine as well.

Barack later became chairman of the board of the Woods Fund (1999-2002). In this position he funneled millions to ACORN and other radical groups. The Woods family ran the fund until 1990, when it was taken over by George Kelm, who moved it politically to the left. Frank Woods Jr., the Fund administrator until 1980 also headed an Illinois coal company, Sahara Coal, which supplied ConEd, so it is likely the Ayers family was already familiar with the Fund and its principals.

Obama also served on the Board of the Joyce Foundation from 1994-2001. This organization funds a large number of gun control groups and did so during Obama's tenure. The Lawyers Committee for Civil Rights Under Law was also one of Joyce's grant recipients. Obama worked for them too. During Obama's time at Woods and Joyce, those funds gave another $900 thousand to Small Schools. They also funded Bill Ayers' brother John's organization, Leadership for Quality Education, to the tune of $761,000. Obama worked on that board too! One very happy family.

Despite receiving almost $2 million in funding, the Small Schools Workshop and all of the other CAC initiatives were failures. Now, you could argue that Obama was only one Board member. But on the Woods board at least he was one of six. Bill Ayers was another. To suggest he didn't know about Ayers ideology and aspirations for the grants he was making would be to accuse him of abandoning his fiduciary responsibility. Would you expect that kind of incompetence from a Presidential candidate?

The way many radicals stay in business is by insinuating themselves onto various philanthropic boards, then dispensing grant monies to friends and fellow travelers, who in turn show their gratitude later. The organizations become a revolving door for these people, who move back and forth between them, or create new ones that they run with grants from their friends. Most American philanthropic organizations have been thusly captured by radicals, often perverting the organization's mission in a way that would horrify the founders if they knew. But most are dead.

In the case of Ayers, it appears he was dispensing a lot of philanthropy money, through Barack Obama, right back to himself in organizations he created and ran for the purpose-- the perfect entrepreneurial parasite. Note that little has come from all his efforts, other than to "mainstream" his lunatic fringe, destructive vision.

This method is also a perfect vehicle to groom someone for public office. Friends use their influence to help the aspiring politician secure a position of influence in a wealthy philanthropy. Using philanthropy money, the aspirant dispenses grants and aid back to those friends and others who later use their influence and connections to smooth the skids for the official candidacy. Once in office, the successful candidate uses his newfound influence to turn around and help his friends again. I believe this is the model Obama used to promote his political career.

But there's still more. When the CAC folded in 2001, they set up a follow-on organization called the Chicago Public Education Fund. Barack stayed on that board too, in an advisory role. One of the twelve board members was Penny Pritzker, currently the national finance chair of Obama's presidential campaign. Penny is notorious as the former chairman of the failed Superior Bank. She led the bank into substantial subprime mortgage investments, then cooked its books so she and her family, already one of the wealthiest in the country, could take record profits while the bank slowly failed. Wait a minute. That sounds just like Frank Raines, Obama's economics advisor, who did the same thing at Fannie Mae! Birds of a feather?

Pritzker was named in a class-action RICO lawsuit, and her family settled with the FDIC for a record $450 million in order to avoid another lawsuit. But the way it was structured, her family may yet come out ahead. Many depositors lost their life savings. These are the "champions of the middle class" Obama likes to work with.

As if all this weren't enough, it now appears that Ayers may have ghostwritten or at least heavily edited Obama's "Dreams From My Father." Obama got an astounding $125,000 advance in 1990 from Simon & Schuster for this first book. They dropped him because he was taking too long. He got a second advance for $40,000 from Random House. The book was finally published in 1995, the same time Ayers got him on the CAC board and helped launch his political career. Passages in his and Ayers' book use many similar unusual metaphors and phraseology, and the writing is of distinctly higher quality than Obama's scant and sophomoric efforts of earlier days. Obama, meanwhile, wrote a glowing review of one of Ayers books, here.

The media could easily reveal that Obama is more than just casual friends with Bill Ayers and that he's a radical to boot. The Los Angeles Times has a video tape of a farewell party given to departing University of Chicago professor Rashid Khalidi, a former advisor to PLO Chairman Yasser Arafat. (Yes, he's a "professor too!") This video shows Obama lavishing praise on the former terrorist. Next up is Obama's "neighbor" Bill Ayers. Just a coincidence, I'm sure.

Just for perspective, watch and hear what a former FBI assistant director has to say about Ayers. Or watch this hilarious video where Ayers calls the police to avoid an O'Reilly Factor reporter. As Bill O'Reilly observed, given that Ayers tried to bomb the police years ago, that is indeed ironic.

But the most chilling of all is the testimony given by FBI informant Larry Grathwohl. See it here in this clip from a 1982 documentary. The Weather Underground planned to build re-education camps in the American Southwest. Those who wouldn't submit to the program would be murdered. The Underground estimated they would have to kill about 25 million Americans. Grathwohl was assigned to Bill Ayers. Following is a summary of his impressions:

Grathwohl found Ayers hard to love; he seemed self-important, a controller of subordinates, the type who loved to give orders. Ayers was a key leader. Grathwohl, a government informant, wrote that Ayers had helped direct a pair of attempted police building bombings in Detroit in February 1970. After doing his assigned job in reconnaissance, Grathwohl disagreed with Mr. Ayers over the placement of one bomb, which could easily kill black patrons who favored an adjacent restaurant, but that Ayers dismissed such sentimentality as unrevolutionary. The informant was glad to be dismissed from the operation by Ayers. Forty-four sticks of dynamite were then formed into two bombs and put into place, before Grathwohl's information allowed police to dismantle both. Ayers' memoir - which freely admits to incompleteness - says nothing of this episode, or Detroit, or the month of February 1970.

A big question about Obama's early life is who paid for it? Who paid for his Columbia and Harvard educations? Who were his patrons? One was Khalid Abdullah Tariq al-Mansour. Mansour, who's name in an earlier life was Don Warden, is a virulently racist black nationalist with ties to the Saudi royal family, specifically Prince Alaweed. After 9-11 Alaweed offered $10 million to New York City but was turned down by Mayor Giuliani when Alaweed suggested we were to blame for 9-11. See a video about Mansour here. For someone who never heard Rev. Wright's hateful speeches, Obama sure knows how to pick 'em. Newsmax has a good backgrounder, here.

Another patron is Tony Rezko. His relationship with Obama seems to have been a fairly straight forward you-scratch-my-back-I'll-scratch-yours scenario. Obama's law firm worked on Rezko projects and Obama helped Rezko businesses with legislation and Woods Fund grants. There's more to this story, but I'd have to write a book.

--Obama's Radical Support Network

Obama has been groomed and supported by such a large number of radical groups it is difficult to chart it all. But the following list represents the best known and significant groups that have provided the intellectual grounding for his ideology and the material support for his political campaigns:

Democratic Socialists of America -- The DSA describes itself as "the largest socialist organization in the U.S. and principle U.S. affiliate of the socialist international" which traces its roots to Marx's first organization. DSA has endorsed Obama and provided an army of on-the-ground campaign workers. Their members are even boasting credit for the success of his ground game. This organization is probably the largest base of Obama's support. The DSA endorsed Obama as far back as 1996, when he first launched his political career.

Here is what the DSA has to say in their endorsement of Obama for President:

While recognizing the critical limitations of the Obama candidacy and the American political system, DSA believes that the possible election of Senator Obama to the presidency in November represents a potential opening for social and labor movements to generate the political momentum necessary to implement a progressive political agenda. (Emphasis added)

WorldNetDaily did an expose on the DSA in 1999, revealing their direct link with the Congressional Progressive Caucus, of which Nancy Pelosi was a prominent member. Following this revelation, DSA edited its website, removing the links between the two organizations and some other damaging information. As WND relates:

Prior to the cleanup of its website in 1999, the DSA included a song list featuring "The Internationale," the worldwide anthem of communism and socialism. Another song on the site was "Red Revolution" sung to the tune of "Red Robin." The lyrics went: "When the Red Revolution brings its solution along, along, there'll be no more lootin' when we start shootin' that Wall Street throng. ..." Another song removed after WorldNetDaily's expose was "Are You Sleeping, Bourgeoisie?" The lyrics went: "Are you sleeping? Are you sleeping? Bourgeoisie, Bourgeoisie. And when the revolution comes, We'll kill you all with knives and guns, Bourgeoisie, Bourgeoisie." (Emphasis mine)

Newsflash to you "middle class" families Obama trying to woo with tax cut promises, you are the bourgeoisie!

Communist Party USA (CPUSA) -- Started in Chicago in 1919, the American Communist Party was under the control of the Soviet KGB until 1989, and may still be under the guidance of KGB successor SVR. While the CPUSA provides fertile recruiting ground for espionage agents in government and business, its main purpose was to provide the Soviets or "Russians" if you prefer, a back door entrance into our political system. The Communist Party supports a political platform virtually identical to Obama's in many aspects. See the chart below. There is, of course, no doubt about who they support, and their endorsement largely parrots what DSA has to say.

Committees of Correspondence for Democracy and Socialism (CCDS) -- Another CPUSA splinter group with many Communist Party members and a hodgepodge of others. Early Obama patron Carl Davidson serves on the CCDS National Council. He was prominent in the New Party, which Obama joined.

New Party -- A political party that promoted electoral fusion, formed of DSA, ACORN, CCDS and CPUSA members. Barack joined the New Party early in his political career and according to the DSA "encouraged NPers to join his task forces on Voter Education and Voter Registration." So not only was he a member of an avowedly socialist organization, he encouraged its members to work with him. Cloward Piven Strategy co-author Frances Fox Piven was also a New Party member. Carl Davidson was also a prominent member. The New Party folded when the U.S. Supreme Court issued a ruling making electoral fusion more problematic-- though it is still practiced in a few states, notably New York. But many New Party members were instrumental in creating the umbrella group, Progressives for Obama.

Students for a Democratic Society (recently revived) -- This newly reformed SDS has 130 or more chapters in the U.S. as of this writing and was designed to attract young radicals into the fold. This SDS was behind much of the violence at the Republican Party convention in Minnesota this year.

Movement for a Democratic Society -- Yet another new party, this time created for the SDS old-timers. MDS and SDS are mutually supportive, with MDS supplying the brains and SDS supplying the brawn. This organization includes the old SDS members we are getting to know: Ayers, Dohrn, Davidson, Klonsky, and many others. Most of the radicals closely associated with Obama have an SDS past. This group founded Progressives for Obama.

Black Radical Congress -- Founded in 1998 in Chicago by some New Party leaders and other black radicals. Endorsed by prominent CPUSA members and has many ties to that group. Member Bill Fletcher was a co-founder of Progressives for Obama.

Progressives for Obama -- Founded by Tom Hayden, Bill Fletcher, Barbara Ehrenreich and Danny Glover. Carl Davidson is webmaster. All but Glover are MDS members. Glover is considered a socialist although he is not a listed DSA member.

New Black Panther Party -- A friendly bunch as you can see from their website. All you need to do is watch this video. With friends like these, who needs enemies? Interestingly, the endorsement formerly posted on Obama's website, visible in the video and here, has been removed. The Panthers explain this embarrassment here. These people are real losers.

Association of Community Organizations for Reform Now (ACORN)-- this group needs no introduction. In addition to being at the heart of the mortgage meltdown, ACORN is being cited once again for widespread voter fraud in 15 states. Given ACORN's boast of registering 1.5 million new voters this year, it is possible this election could be decided by fraudulent votes. In the meantime, it has been revealed that the Obama Campaign has paid at least $800,000 to an ACORN subsidiary for get-out-the-vote efforts. That the media has overlooked this glaring conflict of interest is astounding. Meanwhile, Obama has lied through his teeth about his longstanding ties to the group.

ACORN gets a sizeable share of its revenues from federal, state and local government subsidies. House Republican leader John Boehner's office estimated ACORN received at least $31 million from the feds since 1998. Despite government largesse, ACORN owes almost $4 million in back taxes, going back almost 20 years. A full report on this, along with funding sources and a good history of its activities and principals can be seen here. Boehner and others are calling on Congress to "defund ACORN."

But this isn't the whole story.

The Housing and Economic Recovery Act of 2008 passed in July puts about $500 million per year into the National Housing Trust Fund. This is separate from the huge amount the Democrats wanted to add in the October bailout bill, and there's probably some in that too, though I haven't checked.

The Trust Fund objects to Republican calling it a "slush fund for ACORN." They claim that "ACORN is ineligible to apply for or receive any dollars from the National Housing Trust Fund." But this is a deception. Another component of the Bill gives $100 million to the "Neighborhood Reinvestment Corporation" for 2008. A list of grantees is here. ACORN Housing is 4th on the list, receiving $7.9 million. There are many other similar organizations listed, some of which could be ACORN offshoots as well. Similarly, if ACORN cannot receive grants directly from the Trust Fund, I am sure they are adept at getting handouts from grantees.

When the Democrats regained control of Congress in 2006, I called it an electoral disaster of epic proportions. It gets worse by the day.

--Radical Individuals Who Shaped Obama's Agenda

Frank Marshall Davis -- Communist Party member who was investigated by the FBI for 19 years. Had perhaps the most profound effect on Obama and probably pointed him toward Chicago.

Carl Davidson -- SDS, MDS, CPUSA, CCDS, leadership position in New Party, supported Obama early on. Davidson's recently declassified FBI file reveals that he traveled to Cuba and worked with the Cubans during the Vietnam War to sabotage our war effort. He was a traitor.

Mike Klonsky -- SDS, led the Maoist Communist Party - Marxist.Leninist (CPML). Although he never joined the Weathermen, Klonsky's FBI file shows the same activity as Davidson. Davidson was also a member of Mike's CPML.

Tom Hayden -- SDS, MDS, Founder, Progressives for Obama. Also the subject of FBI surveillance.

Bill Ayers & Bernardine Dohrn -- Need we say more about him? Read about their treasonous interaction with Cuban intelligence here. Dohrn is, if anything, an even bigger whack job than Ayers. Watch her in a 1998 interview with ABC's Connie Chung, here, and another short gem here.

A report has come out summarizing everything these people did. You can read it here. The FBI file, some 400 plus pages, is available here.

Frances Fox Piven, longtime DSA member, who also served on the boards of the ACLU and the DSA, was the co-author of the Cloward-Piven Strategy. She was one of the original signatories of Progressives for Obama. She was also a New Party member. Her husband, Richard Cloward, died in 2001, so fortunately can do no more damage than he already has.

Last January Piven also signed a separate letter opposing Hillary and endorsing Obama's Presidency from an organization called "New York Feminists for Peace and Barack Obama." You can hear her defend Karl Marx in an NPR interview, May 1, 1996, here.

Finally, we have George Soros, his Open Society Institute and other "philanthropies." Soros has publicly stated his belief that "The main obstacle to a stable and just world order is the United States," and it is necessary to "puncture the bubble of American supremacy. From a FrontPage Magazine interview with author Richard Poe:

Most Americans do not realize that the McCain-Feingold Act of 2002 was a Trojan Horse. Its stated purpose was to reform campaign finance law. Its actual effect is to regulate political speech. McCain-Feingold was a Shadow Party initiative. Soros and a group of leftwing foundations spent over $140 million to get it passed.

As part of the plan, before the legislation even passed, Soros' group intended to set up previously unheard of "527" organizations to get around the legislation they helped author. Republicans were, as usual, in the dark. Now the 527's like MoveOn.org, heavily funded with Soros money, do his bidding. Soros also managed to get himself and others like him exempted from donation caps in the campaign finance reform law. Finally, it is difficult to know if Soros has had any influence in our current financial crisis, but he certainly has had a hand in others.

As mentioned in my earlier Crisis article, one of SDS's orginal founders, Aryeh Neier now runs Soros' Open Society Institute. One VERY BIG happy family.

But it gets better still! Director of the Open Society Policy Center is Morton Halperin, who has spent a lifetime working against the interests of the United States. According to a prominent former State Department official: "Halperin has been known on embassy [briefing] cards as a Soviet or communist agent." Bill Clinton tried to get him an appointment to the Department of Defense, but Republicans successfully fought the nomination, citing security concerns.

Halperin's son, Mark, has been the Political Director of ABC News since 1997. He penned the infamous memo in 2004, telling journalists to ignore John Kerry misstatements while magnifying Bush's. From Discover The Networks:

We have a responsibility," Halperin's memo continued, "to hold both sides accountable to the public interest, but that doesn't mean we reflexively and artificially hold both sides 'equally' accountable..."

Now we begin to understand where the media bias comes from. Similar partisans are highly placed in almost every other television news show, with the possible exception of Fox.

--Obama's Policy Positions Indistinguishable from Communists and Socialists

Obama's website offers a much more "nuanced" explanation of his policies, but on the critical issues listed below, there is remarkable similarity to the Communist and Socialist positions on almost every issue. In fact, one might easily conclude he was inspired by them, since they were there first and their positions almost never change.

Obama has openly admitted that he wants to raise top marginal tax rates back to "Reagan Era" levels, although his most recent campaign literature says "Clinton Era" levels. His website tax issue page also states: "Obama will ask the wealthiest 2% of families to give back a portion of the tax cuts they have received over the past eight years." This means retroactive tax increases to 2001!

In a 2001 radio interview, Obama considers Supreme Court's failure to consider "redistribution of income" as a shortcoming that needs to be remedied.

As this video makes startlingly clear, Obama promises to make deep cuts in defense spending and gut our defense posture, regardless of the more "nuanced" tone of his website. Obama is unequivocal in his call for universal health insurance, although once again, his website muddies this fact with promises of tax credits for private insurance. His preference for the UN and other international bodies not particularly friendly to the U.S. is well known.

Obama fully supports the very deceptively named "Employee Free Choice Act," which abolishes the secret ballot and forces employees to reveal how they vote on union issues. A setup for union intimidation, this unprecedented legislation is truly Orwellian. If you want some shocking perspective, even Nixon-era, far left former presidential candidate George McGovern has gone on the warpath against this very anti-democratic legislation, with an article, a commercial and multiple TV interviews.

--Radical Help Waiting in the Wings

There is a ready pool of radicals waiting to push Obama's agenda in Congress.

Congressional Progressive Caucus-- Largest partisan caucus in the House of Representatives --with 71 members comprises about 1/3 of all House Democrats. Avowed socialist Senator Bernie Sanders (I-VT) retains his membership. The Caucus maintained a formal relationship with the DSA until 1999, when an article by WorldNetDaily exposed the links between the two.

Congressional Black Caucus -- at the center of the mortgage crisis, the congressional black caucus welcomed the newly minted Senator Obama in 2005 with a sickeningly toadying speech by the CEO of Fannie Mae. As we all know by now, Obama received more money from Fannie Mae in his three short years as Senator than anyone other than Finance Chairman Chris Dodd. Why? No one has asked!

Some have conjectured that Obama may not really be all that radical himself. Maybe somehow he has just played along with these groups to get their support. I doubt it, but even were it true, so what? It should be painfully apparent to anyone reading this that Obama has committed himself too deeply and owes too much to too many to abandon the radical path he has taken. Isn't that why they supported him in the first place?

--What did Biden Mean?

Earlier this week, Joe Biden made some astounding comments on the campaign trail, not once, but on two different occasions. Following are Biden's words, as quoted by Amanda Carpenter. There were two separate statements, of equal import as far as I am concerned, and I will try to interpret each in turn:

"Watch, we're gonna have an international crisis, a generated crisis, to test the mettle of this guy," Biden said. "I can give you at least four or five scenarios from where it might originate. And he's gonna need help. And the kind of help he's gonna need is, he's gonna need you - not financially to help him - we're gonna need you to use your influence, your influence within the community, to stand with him. Because it's not gonna be apparent initially, it's not gonna be apparent that we're right."

"Gird your loins," Biden warned. "We're gonna win with your help, God willing, we're gonna win, but this is not gonna be an easy ride. This president, the next president, is gonna be left with the most significant task. It's like cleaning the Augean stables, man. This is more than just, this is more than-- think about it, literally, think about it --this is more than just a capital crisis, this is more than just markets. This is a systemic problem we have with this economy."

Regarding the first statement, moronic as it was of him to say so, Biden is right. Our enemies will certainly see vulnerability with Obama as President. Now, as to his remark that "...it's not gonna be apparent that we're right," I believe that what he means is that Obama will back down from any confrontation. Here's why.

Both Barack and Biden are anti-war. But to truly understand the anti-war movement you have to go back to the beginning and get correct working definitions.

If you recall during the Vietnam War, America's peace activists never had a problem with North Vietnamese flagrant violations of peace agreements, their double-dealing in negotiations, their torture of U.S. POWs, their mass murder of South Vietnamese after we pulled out, or their genocidal holocaust against the indigenous tribes that is ongoing to this day. The silence is deafening.

Our enemies seemingly can do no wrong. Even when al Zarkawi began beheading Americans in Iraq, who did the "peace activists" blame? They certainly weren't calling for his head!

It seems inconsistent that a "peace" movement's "anti-war" stance would be so overtly pro-war when it comes to our enemies. But there is a rational, logical explanation, believe it or not.

From their earliest days, Soviet communists always professed an ardent desire for "peace." They have been relentless in making that claim. However, they have a unique definition of peace:

Lenin said: "As long as capitalism and Socialism exist, we cannot live in peace-- In the end, one or the other will triumph." William E. Odom explains: "The Soviet definition of Peace is unique and incompatible with Western definitions. Defense, in this peculiar Soviet sense, means offense. Peace means the destruction of all non-socialist states-- peaceful coexistence was a strategy for irreconcilable struggle, political and military, with capitalism. Peaceful coexistence remains Soviet strategy today."

To the Soviets, "peace" is defined as that point in history when all Soviet enemies, real or potential, are utterly destroyed. This definition does not only refer to external enemies. It includes all enemies. Thus, while maintaining an offensive posture to the world, in Soviet Russia, Lenin and Stalin murdered 40 million of their own. In China, Mao and his monsters murdered 70 million; Vietnam, 2 million; Cambodia, 2 million, Soviet-controlled Afghanistan, 1 million, Saddam's Iraq, at least 300,000, and so on. All other communist countries do the same. It is communist doctrine to obliterate any and all enemies, real, potential or imagined-- within and when possible, without.

Western "peace" activists fully understand the Soviet definition, and therefore believe that "world peace" can only be achieved when all the enemies of socialism are destroyed-- in other words, when the entire world becomes socialist. Since peace activists are almost all socialists themselves, by working for socialism, they believe they are automatically working for world "peace."

Finally, many of the so-called "peace" activists were overtly pro-war. Bill Ayers' 1974 diatribe "Prairie Fire" specifically stated that they were not anti-war at all, but in favor of Communist victory in the Vietnam War.

But even if you take the most benign view of "peace activism," properly understood, it means that peace activists will seek capitulation to the communist juggernaut, if only to avoid the war that is otherwise certain to come.

Now, I know what you are saying, that communism is supposedly dead. The Soviet Union was defeated by Reagan, SDI, etc. Ignoring for a moment the Chinese Communist elephant in the tent, Cuba, North Korea, Syria and all the other unrepentant communist countries, or the fact that communism has been enjoying a worldwide resurgence lately and the mounting fear that Russia never really abandoned it, regardless, socialists in this country and elsewhere remain determined to see capitalism fall-- it is their raison d'etre --and America is the last bastion of capitalism.

Remember, this is the ultimate goal of the Cloward Piven Strategy, and it matters little how they get there.

So Socialist Obama, believing as he does that the answer to everything is socialism, will do everything possible to undermine our defense posture, as he has already promised. And because he is interested in replacing our capitalist society with a socialist one, if we are attacked he will not fight. As he has promised, he will prefer to "negotiate without preconditions." Hence Biden's statement that "...it's not gonna be apparent initially, it's not gonna be apparent that we're right."

If the aggressor is one of the large communist countries, he will capitulate. North Korea? He will do nothing. After all, their aggression is our fault-- sorry, Bush's fault. But what happens if the aggressor is Iran? For some reason he is unafraid of a Muslim Caliphate. Perhaps that is because he knows, like some of the rest of us, that the Muslims and Leftists are working together to destroy this country.

Biden's second comment, ending with the line: "This is a systemic problem (emphasis mine) we have with this economy," is also chilling. It suggests he believes the capitalist system is the problem-- not a big surprise if you accept my argument that this is a socialist ticket. And you cannot conclude differently if you acknowledge the fact that Obama's economic policies are socialist to the core. It reaffirms what we have been predicting for a while now: a President Obama will quickly begin moving this country into the socialist camp with his socialist economic policies.

Both statements reinforce the impression that we are in for bad times if Obama is elected-- bad times most Americans cannot begin to imagine. Thanks for the heads up, Joe.

This election may well be the most important in our nation's history. An Obama presidency could not come at a worse time. The world economy stand on the edge of an abyss. If enacted, Obama's socialist class warfare economic policies will push it right over the edge and we could see the nightmare scenario outlined earlier come to fruition. As it stands now, the market is already reacting to fears of Obama's socialist economic policies.

Perhaps this is the place to also note that Hillary backers are claiming widespread vote fraud and intimidation from the Obama camp during the primaries. They have produced a video, here. Read a summary, here and an exhaustive study, here. Now comes the October surprise. A letter from Hillary's campaign sent to the Nevada Democrat State Party Chair alleges:

"...a premeditated and predesigned plan by the Obama campaign to engage in systematic corruption of the Party's caucus procedures. Compounding this blatant distortion of the caucus rules was an egregious effort by the Obama campaign to manipulate the voter registration process in its own favor, thereby disenfranchising countless voters. Finally, the committee has received a vast number of reliable reports of voter suppression and intimidation by the Obama campaign or its allies." (Emphasis mine.)

The media silence on this story that surfaced on October 23 is deafening, although apparently the Clintons don't care too much as they have been out on the stump for Obama of late. Political survival seems always foremost for the Clintons. What else is new.

And now I'll tell you why I think they have pulled out all the stops. From eye-popping, unprecedented bias in the media to biased opinion polls, from unprecedented levels of questionable donations, including illegal foreign money flowing into Obama's campaign coffers, to astronomical levels of voter registration fraud, there has never been an election season like this. They are going for broke because they believe that this is the last time they will ever have to do it. With majorities in both houses of Congress and a leftist in the White House, they will finally own the store completely. They are hoping to never have to give it up again.

When Obama said: "We are the ones We have been waiting for" he was talking about "we the communists."

I can only hope and pray that it is not too late for our great country.

Do not vote for Barack Obama!

Rush Limbaugh's Address to the 2009 Conservative Political Action Conference -- February 28, 2009

2009-03-01T16:11:00.003-06:00

Thank you so much. Thank you. Thank you all very, very much. Thank you all. I can't tell you how wonderful that makes me feel. It happens everywhere I go, but it's still special here. [ Laughter ] If you all will indulge me, I learned something, I guess, it's early Friday morning that I didn't know. Friday morning is when I learned this. I learned that Fox, God love them, is televising this speech on the Fox News Channel, which means, ladies and gentleman, this is my first ever address to the nation. [Applause]

Now, I have someone in back taking phone numbers. In fact, I would like to introduce to you my security chief, a man who runs all of my security. His name is Joseph Stalin. Joseph, would you please -- [Laughter ] I am safe from any liberal attack, in public, because they would be afraid of offending Stalin. [Laughter] Now the opportunity here to address the nation, a serious one, it really is. And I want to take it seriously. I want to address something. I know that people are probably watching this who never have listened to my program and may not even really know what conservatism is. They think they do based on how they've been told -- the way we've been impugned and maligned and so forth. One of the things that is totally erroneous about me -- and I just want to get this up front -- is that I'm pompous. [Laughter]

And that I am arrogant. Neither of these things are remotely true. I can tell you a joke to illustrate this. Larry King passed away, goes to heaven. He's greeted by Saint Peter at the gates. Saint Peter says, "Welcome, Mr. King, it's great to have you here. I want to show you around, give you an idea of what's here, maybe you can pick a place that you'd like to reside." King says, "I just have one question: Is Rush Limbaugh here?"

"No, he's got a lot of time yet, Mr. King." So Saint Peter begins the tour. Larry King sees the various places and it's beyond anything we can imagine in terms of beauty. Finally, he gets to the biggest room of all, with this giant throne. And over the throne is a flashing beautiful angelic neon sign that says "Rush Limbaugh." [Laughter]

And Larry King looks at Saint Peter and says: "I thought you said he wasn't here."

"He said, he's not, he's not. This is God's room. He just thinks he's Rush Limbaugh."[Laughter] [Applause]

So you see I'm not pompous. [Laughter]

Now, seriously, for those of you watching on C-SPAN as well, and on Fox, I want to tell you who we all are in this room. I want to tell you who conservatives are. We conservatives have not done a good enough job of just laying out basically who we are because we make the mistake of assuming people know. What they know is largely incorrect based on the way we are portrayed in pop culture, in the Drive-By Media, by the Democrat Party.

Let me tell you who we conservatives are: We love people. [Applause] When we look out over the United States of America, when we are anywhere, when we see a group of people, such as this or anywhere, we see Americans. We see human beings. We don't see groups. We don't see victims. We don't see people we want to exploit. What we see -- what we see is potential. We do not look out across the country and see the average American, the person that makes this country work. We do not see that person with contempt. We don't think that person doesn't have what it takes. We believe that person can be the best he or she wants to be if certain things are just removed from their path like onerous taxes, regulations and too much government. [Applause]

We want every American to be the best he or she chooses to be. We recognize that we are all individuals. We love and revere our founding documents, the Constitution and the Declaration of Independence. [Applause] We believe that the preamble to the Constitution contains an inarguable truth that we are all endowed by our creator with certain inalienable rights, among them life. [Applause] Liberty, Freedom. [Applause] And the pursuit of happiness. [Applause] Those of you watching at home may wonder why this is being applauded. We conservatives think all three are under assault. [Applause] Thank you. Thank you.

We don't want to tell anybody how to live. That's up to you. If you want to make the best of yourself, feel free. If you want to ruin your life, we'll try to stop it, but it's a waste. We look over the country as it is today, we see so much waste, human potential that's been destroyed by 50 years of a welfare state. By a failed war on poverty. [Applause]

We love the people of this country. And we want this to be the greatest country it can be, but we do understand, as people created and endowed by our creator, we're all individuals. We resist the effort to group us. We resist the effort to make us feel that we're all the same, that we're no different than anybody else. We're all different. There are no two things or people in this world who are created in a way that they end up with equal outcomes. That's up to them. They are created equal, given the chance - -[Applause]

We don't hate anybody. We don't -- I mean, the racism in this country, if you ask me, I know many people in this audience -- let me deal with this head on. You know what the cliche is, a conservative: racist, sexist, bigot, homophobe. Excuse me, ladies and gentlemen of America, if you were paying attention, I know you were, the racism in our culture was exclusively and fully on display in the Democrat primary last year. [Applause]

It was not us asking whether Barack Obama was authentic. What we were asking is: Is he wrong? We concluded, yes. We still think so. But we didn't ask if he was authentically black. We didn't say, as some Southern Christian Leadership Conference leaders said: Barack is not authentic, he's not got any slave blood. He's really not down for the struggle, but his wife is. So don't expect the race industry to go away. Southern Christian Leadership Conference -- you may not know this, because it wasn't reported in the Drive-By Media -- the racism, the sexism, the bigotry that we're all charged with, just so you across the United States of America know, and you'll see demonstrated here as the afternoon goes on, doesn't exist on our side. We want everybody to succeed. [Applause]

You know why? We want the country to succeed, and for the country to succeed, its people -- its individuals -- must succeed. Everyone among us must be pursuing his ambition or her desire, whatever, with excellence. Trying to be the best they can be. Not told, as they are told by the Democrat Party: You really can't do that, you don't have what it takes, besides you're a minority or you're a woman and there are too many people that want to discriminate against you. You can't get anywhere. You need to depend on us.

Well. Take a look, someone has to say this -- I am thrilled for the opportunity to say it in my first national address to the nation -- and I'm going to touch on this in more detail in a moment, but this is just to get you thinking -- take a look at all the constituency groups that for 50 years have been depending on the Democrat Party to improve their lives. And you tell me if you find any. They're still complaining, still griping about the same problems. Their problems don't get fixed by government. And those lives have been poisoned. Those lives have been cut short by false promises, from government representatives who said don't worry about it, we'll take care of you. Just vote for us. [Applause]

For those of you just tuning in on the Fox News Channel or C-SPAN, I'm Rush Limbaugh and I want everyone in this room and every one of you around the country to succeed. I want anyone who believes in life, liberty, pursuit of happiness to succeed. And I want any force, any person, any element of an overarching Big Government that would stop your success, I want that organization, that element or that person to fail. I want you to succeed. [Applause] Also, for those of you in the Drive-By Media watching, I have not needed a teleprompter for anything I've said. [Cheers and Applause ] And nor do any of us need a teleprompter, because our beliefs are not the result of calculations and contrivances. Our beliefs are not the result of a deranged psychology. Our beliefs are our core. Our beliefs are our hearts. We don't have to make notes about what we believe. We don't have to write down, oh do I believe it do I believe that we can tell people what we believe off the top of our heads and we can do it with passion and we can do it with clarity, and we can do it persuasively. Some of us just haven't had the inspiration or motivation to do so in a number of years, but that's about to change. [Cheers and Applause]

For example, we gather here -- I understand that. I talked to David and Lisa in the super exclusive private green room that nobody, but about 55 people were allowed into, and they said that there's a sense of liberation here among all of you that are attending CPAC. I understand what the sense of liberation is about. But don't make the mistake at the same time of feeling liberated as thinking we're better and we can do better as a minority. Because we're not a minority. And if you start thinking of yourselves as a minority, you're going to be defensive. And you'll allow the majority to set the agenda and the premise and you're responding to it. The American people may not all vote the way we wish them to, but more Americans than you now live their lives as conservatives in one degree or another. And they are waiting for leadership. We need conservative leadership. We can take this country back. All we need is to nominate the right candidate. It's no more complicated than that. [Applause]
Now, let me speak about President Obama for just a second. President Obama is one of the most gifted politicians, one of the most gifted men that I have ever witnessed. He has extraordinary talents. He has communication skills that hardly anyone can surpass. No, seriously. No, no, I'm being very serious about this. It just breaks my heart that he does not use these extraordinary talents and gifts to motivate and inspire the American people to be the best they can be. He's doing just the opposite. And it's a shame. [Applause] President Obama has the ability -- he has the ability to inspire excellence in people's pursuits. He has the ability to do all this, yet he pursues a path, seeks a path that punishes achievement, that punishes earners and punishes -- and he speaks negatively of the country. Ronald Reagan used to speak of a shining city on a hill. Barack Obama portrays America as a soup kitchen in some dark night in a corner of America that's very obscure. He's constantly telling the American people that bad times are ahead, worst times are ahead. And it's troubling, because this is the United States of America. Anybody ever ask -- I'm in awe of our country and I ask this question a lot as I've gotten older. We're less than 300 years old. We are younger than nations that have been on this planet for thousands of years. We, nevertheless, in less than 300 years -- by the way, we're no different than any other human beings around the world. Our DNA is no different. We're not better just because we're born in America. There's nothing that sets us apart. How did this happen? How did the United States of America become the world's lone super power, the world's economic engine, the most prosperous opportunity for an advanced lifestyle that humanity has ever known? How did this happen? And why pray tell does the President of the United States want to destroy it? It saddens me.

The freedom we spoke of earlier is the freedom, it's the ambition, it's the desire, the wherewithal, the passions that people have that gave us the great entrepreneurial advances, the great inventions, the greatest food production, the human lifestyle advances in this country. Why shouldn't that be rewarded? Why is that now the focus of punishment? Why is that now the focus of blame? Why doesn't -- Mayor Bloomberg the other day, ladies and gentlemen, resisting his Governor's call for an increased tax on the rich in New York had some astounding numbers. Eight million people live in New York. 40,000 of those eight million pay roughly 60 to 70% of New York's operating budget. He was afraid that if he raised taxes on those people some of them might leave. Mayor, one already has, by the way. [Applause] Stop and think of this, though. Stop and think of this. Forty thousand people out of eight million. He's right, if 10,000 of them leave, or 5,000, they've got a huge problem. Because New York has its own welfare state inside the one the federal government's created. They've got a dependency class that has grown up and been educated that their entitlement is to be fed and taken care of by these evil mean people who have more than they do. If New York City, New York State or Washington, DC were a business, these 40,000 people would be taken on golf tournament trips to Los Angeles, and they would be wined and dined and they would be thanked and they would be encouraged to keep it up. They wouldn't be told they're the problem. They wouldn't be told, except there's -- I pride my accuracy rating. There is one other business where the customer is always wrong and that's the media. Sorry about that. [Applause]

Have you ever called to complain about whatever they do? They say, yes, sir, yes, sir, three bags full. They hang up and say you're too stupid to know how they're doing what they're doing. You can't get it. You're not sophisticated enough. So that's another business where the customer is always wrong. But, seriously, the people who have achieved great things, most of it is not inherited. Most wealth in this country is the result of entrepreneurial, just plain old hard work. There's no reason to punish it. There's no reason to raise taxes on these people. Barack Obama, the Democrat Party, have one responsibility, and that's to respect the oath they gave to protect, defend and follow the US Constitution. [Applause]

They don't have the right to take money that's not theirs, from the back pockets of producers, and give it to groups like ACORN, which are going to advance the Democrat Party. If anybody but government were doing this, it would be a crime. And many of us think it's bordering on that as it exists now. [Applause]
President Obama is so busy trying to foment and create anger in a created atmosphere of crisis, he is so busy fueling the emotions of class envy that he's forgotten it's not his money that he's spending. [Applause] In fact, the money he's spending is not ours. He's spending wealth that has yet to be created. And that is not sustainable. It will not work. This has been tried around the world. And every time it's been tried, it's a failed disaster.

What's the longest war in American history? Did somebody say the war on poverty? Smart group. War on poverty. The war on poverty essentially started in the '30s as part of the New Deal, but it really ramped up in the '60s with Lyndon Johnson, part of the Great Society war on poverty. We have transferred something like 10 trillion, maybe close to 11 trillion, from producers and earners to nonproducers and nonearners since 1965. Yet, as I listen to the Democratic Party campaign, why, America is still a soup kitchen, the poor is still poor and they have no hope and they're poor for what reason? They're poor because of us, because we don't care, and because we've gotten rich by taking from them, that's what kids in school are taught today. That's what others have said to the media. You know why they're poor, you know why they remain poor? Because their lives have been destroyed by the never-ending government hay that's designed to help them, but it destroys ambition. It destroys the education they might get to learn to be self-fulfilling. [Applause] And it breaks our heart. It breaks our heart. We lose track of numbers with all of the money, with all the money that's been transferred, redistributed, with all the charitable giving in this country.

Ladies and gentlemen, there ought not be any poverty except those who are genuinely ill equipped. But most of the people in poverty in this country are equipped for far much more. They've just been beaten down. They're told don't worry, we'll take care of you. There's nothing out there for you anyway; you'll be discriminated against. Breaks our heart to see this. We can't have a great country and a growing economy with more and more people being told they have a right, because of some injustice that's been done to them or some discrimination, that they have a right to the earnings of others. And it's gotten so out of hand now that what worries me is that this administration, the Barack Obama administration is actively seeking to expand the welfare state in this country because he wants to control it.

George Will once asked Dr. Friedrich Von Hayek, tremendous classical economist, great man, 1975, George Will, Dr. Von Hayek, why is it that intellectuals, supposed smartest people in the room, why is it that intellectuals can look right out their windows, their own homes and cars and look at their universities and not see the bounties and the growth and the greatness of capitalism? And Von Hayek said: I've troubled over this for years and I've finally concluded that for intellectuals, pseudo-intellectuals, and all liberals, it's about control. It's not about raising revenue. You think Obama has any intention of paying for all this spending? Folks, if he had any intention of paying for it, he wouldn't do 90% of it because we don't have the money. [Applause]

They don't care about paying for it. All that's just words. All that's just rhetoric paying for it because he knows you have to worry about paying for it. He knows we all have to be concerned -- oh, except, wrong again. Except the words of Barney Frank and Chris Dodd who were given homes that everybody knew they could never pay for, and now Barney Frank and Chris Dodd, the architects along with Bill Clinton of the policy that gave us the whole sub-prime mortgage crisis, get to sit around and act as innocent spectators to investigate what went on when they largely had the biggest role in causing it. [Applause]

Congressman Frank's definition of affordable housing is you get a house you don't have to pay for that everybody else in the neighborhood will pay for. Why? Because it's unfair that some people can have a house and some people can't. Geez, it's just unfair. So here we have two systems. We have socialism, collectivism, Stalin, whatever you want to call it, versus capitalism. Admittedly over on the right side capitalism there will be unequal outcomes because we're all different. And some of us care more and have more passion and we know what we want to do and others are still struggling for it. Some people are just going to work harder than others. Okay. You get what you work for. Those who have a genuine inability for whatever reason are taken care of. We're compassionate people. On the left side when you get into this collectivism socialism stuff, these people on the left, the Democrats and liberals today claim that they are pained by the inequities and the inequalities in our society. And they believe that these inequities and inequalities descend from the selfishness and the greed of the achievers. And so they tell the people who are on different income quintiles, whatever lists, they say it's not that you're not working hard enough, you could have what they have, perhaps, if you applied it. They're stealing it from you.

So what liberals do, and I say this again to the -- another thing, I know people in the country are watching. I was watching a focus group after some event this week. Might have been after Obama's State of the Union show. [Laughter] And they had -- it was a typical, you know, Drive-By Media focus group. They round up losers -- [Laughter] -- who hear Obama speak and think that the next day their gas tanks are going to be filled up and get a new house and a new kitchen and a new car. And so this one guy said -- oh, it was some guy responding to Bobby Jindal. Oh, by the way did you hear about Joe Biden? Joe Biden was mystified how Bobby Jindal got his shift off at 7-Eleven that night to make the speech. Wait a minute. Wait a minute. Time out. Suspend speech for explanation. People watching at home. I'm glad this happened. Glad this happened. You think I just made a joke, an ethnic joke about Bobby Jindal, don't you? I didn't. I made a joke about the bigotry of the Vice President of the United States, Joe Biden. It was Joe Biden while walking through the train station he knows so well because he's such a real guy, that he made a comment that you can't go into a 7-Eleven without seeing some Indian guy behind the counter. They're all over the place.

Now, let a conservative say something like that and he's brought up before John Conyers' committee with Pat Leahy wanting at you next. Many people think I lose my place in these speeches because -- by the way what time is it? We have plenty of time. We have to be out of here by -- [Applause] We have to be out of here by 6:00 -- okay, depends on how you behave. I'll decide as we go on. What liberalism Democrat, for those of you in the country, I really want you to believe this because it's the truth. I'm not saying it just because I believe it. This is a core. I want the best country we can have. We want the most prosperous people. We want to be growing. We want to lead the world. We want everybody to come here legally. We want this country to be so damn great and we just cringe to watch it -- basically capitalism be assaulted and our culture be reoriented to where the people that make it work are the enemy. That's not the United States of America. The people that make this country work, the people who pay on their mortgages, the people getting up and going to work, striving in this recession to not participate in it, they're not the enemy.

They're the people that hire you. They're the people that are going to give you a job. They're the people that are going to give you a raise, the people that need you to do work for them. [Applause] President Obama, and take your pick of any Democrat, love to say we've tried it your way. Meaning Reaganism. We've tried it your way. We tried it your way in the '80s and it didn't work. We tried it your way eight years, the last eight years and it didn't work. Excuse me. Excuse me. Have you ever noticed those of you watching around the world in my first international address to the world, Fox is on some international satellites. They're watching this in the UK right now going (cringing). When Obama talks about past economies, he somehow always leaves out the recession of the '80s as worse than this one. Why does he leave it out? Because you know why he leaves it out, America? He leaves it out because we got out of that recession with tax cuts. [Applause] For those of you watching at home, I'm not nervous it's just really hot in here. These people are wired. We got out of the 1980s recession with tax cuts. Do you know that President Obama, in six weeks of his administration, has proposed more spending than from the founding of the country to his inauguration?

Now, this is not prosperity. It is not going to engender prosperity. It's not going to create prosperity and it's also not going to advance or promote freedom. It's going to be just the opposite. There are going to be more controls over what you can and can't do, how you can and can't do it, what you can and can't drive, what you can and can't say, where you can and can't say it. All of these things are coming down the pike, because it's not about revenue generation to them, it's about control. They do believe that they have compassion. They do believe they care. But, see, we never are allowed to look at the results of their plans, we are told we must only look at their good intentions, their big hearts. The fact that they have destroyed poor families by breaking up those families by offering welfare checks to women to keep having babies no more father needed, he's out doing something, the government's the father, they destroy the family. We're not supposed to analyze that. We're not supposed to talk about that. We're supposed to talk about their good intentions. They destroy people's futures. The future is not Big Government. Self-serving politicians. Powerful bureaucrats. This has been tried, tested throughout history. The result has always been disaster. President Obama, your agenda is not new. It's not change, and it's not hope. [Applause] Spending a nation into generational debt is not an act of compassion. All politicians, including President Obama, are temporary stewards of this nation. It is not their task to remake the founding of this country. It is not their task to tear it apart and rebuild it in their image.

(Crowd chanting "USA")

It is not their task, it is not their right to remake this nation to accommodate their psychology. I sometimes wonder if liberalism is not just a psychosis or a psychology, not an ideology. It's so much about feelings, and the predominant feeling that liberalism is about is about feeling good about themselves and they do that by telling themselves they have all this compassion. You know, if you really want to unhinge a liberal it's hard to do because they're so unhinged now anyway, even after -- but all you have to do is say you know that the things you people do, the things you people believe in are cruel. That's the last way they look at themselves. They are the best people on the -- they're the good people. You tell them that their ideas and that their policies are cruel and the eggs start scrambling.

I have learned how to tweak liberals everywhere. I do it instinctively now. Tweak them in the media. And no reason to be afraid of these people. Why in the world would you be afraid of the deranged? There really is no reason to be afraid of them. And there's no reason to assume they're the minority. And there's no reason to let them set all the premises and all the agendas to which we respond to. I'm getting a little bit ahead of myself here but everybody asks me and I'm sure it's been a focal point of your convention: What do we do as conservatives? What do we do? How do we overcome this?

Well, the one thing, and there are many, but one thing that we can all do is stop assuming that the way to beat them is with better policy ideas right now. I don't want to name any names. It's not the point. But I talk to people about the Obama budget or the Obama Porkulous bill or whatever else TARP 2 whatever it's going to be, and they start talking to me in the terms of process and policy. I say stop it. What do you mean? Who is setting the process or policy? They are. You want to tweak it? No. This is philosophy, folks. This guy, I forgot -- the guy in the focus group after Bobby Jindal said, I didn't want to hear him talk, he said: Republicans and Democrats. Republicans and Democrats. Ladies and gentlemen of the United States of America, that's exactly what your future is about, who wins, Republicans or Democrats, conservatives versus liberals. The notion of partisanship, false premise. Let me define bipartisanship for you. Bipartisanship -- everybody seems to go orgasmic over the concept of bipartisanship. Don't worry, I checked with Fox, that word's okay. [Laughter] [Applause]

Remember, they covered the Lewinsky thing, so that's my -- bipartisanship occurs only after one other result, and that is victory. In other words, let's say as conservatives liberals demand that we be bipartisan with them in Congress. What they mean is: We check our core principles at the door, come in, let them run the show and agree with them. That's bipartisanship to them. To us, bipartisanship is them being forced to agree with us after we politically have cleaned their clocks and beaten them. And that has to be what we're focused on. [Applause] Why would any of us in this room who hold the core beliefs we believe, somebody tell me where is the compromise on all of this spending? Where is the compromise on all this punishment of the achievers. I don't know. [Laughter] [Applause]
Where is the compromise between good and evil? Should Jesus have cut a different deal? Serious. From the standpoint of what we have to do, folks, this is not about taking a policy or a process that the Democrats have put forward and fighting around the edges. If we're going to convince the minds and hearts of the American people that what's about to happen to them is as disastrous as anything in their lives in peacetime, we're going to have to discuss philosophy with them. We are going to have to talk about principles, because our principles are not present in what's happening here. So where the hell do we go to compromise what we believe in when our principles are not their principles, they're just the opposite of what's happening? [Applause]

The American people -- it's a tough challenge. I admit -- I admit it's a tough challenge, but it's worth it. It's worth it. The way I just defined bipartisanship you could turn it around and liberals will define bipartisanship when we surrender and say okay we give. We're not quitting. We are not giving up. The country is too important. [Applause] There are certain realities. We don't have the votes in Capitol Hill to stop what's going to happen. What we can do is slow it down, procedure, parliamentary procedures, slow it down and do the best we can to inform the American people of what's really on the horizon. I know it's going to be tough. At some points, I don't think it can happen even right now. This is still the honeymoon period, and there's a lot of devotion to the Obama administration. It doesn't have anything to do with intellectual thinking, it's feelings. It's going to take some time for this to play out. But I spoke to David Keene, interviewing him for my newsletter. I asked him about this. He said they're going to overreach. Wouldn't you say they have? [Laughter].

They're going to overreach. At some point, at some point people have got to realize none of this is possible. You can't have people living in homes they don't pay for. You can't have people driving cars they don't pay for. I mean, you can for a while. But after a while the people paying for it -- screw this. We're not putting up with it. And you're going to see -- you're already starting to see evidence of these. All the tea parties that are starting to bubble up out there. Those are great. Fabulous. [Applause] And here's the big question. Here's the big question. And I ask this again in the context of my first address to the nation. [Laughter] You don't know how I love saying that, how excited I am about this. Aside from the bastardization of the Constitution that the Obama plans are, that TARP is, it's not constitutional. Aside from that, where is the evidence that the people offering all of this have ever succeeded in any similar plans before? There's none. There is no evidence it works. [Applause]

So you say how is he getting it done? Dumb down public education. Emotions. And the ongoing -- this is why I think it's such a waste for a man as gifted as President Obama with the communications skills, you know he could wipe out the Republican Party. He can wipe out the Republican Party if he would inspire this country to be the best it could be, but we don't have to worry about that because that's not what he wants. He wants people in fear, angst and crisis, fearing the worst each and every day because that clears the decks for President Obama and his pals to come in with the answers, which are abject failures, historically shown and demonstrated. Doesn't matter. They'll have control of it when it's all over. And that's what they want. Because they think they can do it better. They see these inequalities, these inequities that capitalism produces. How do they fix it? Do they try to elevate those at the bottom? No! They try to tear down the people at the bottom. It's not fair you're up there. So they whack us. That's not what made the country great.[Applause] And no evidence of it is in play here.

John Kerry [Boos], who served in Vietnam. [Laughter] Think about this, and, by the way, Barney Frank got involved with this, too. Northern Trust, a bank in Chicago -- by the way, which holds the mortgage to the Messiah's house, purchased by Tony Rezko, Northern Trust holds the mortgage. Northern Trust was forced, like Wells Fargo was forced, to take TARP money. The Wells Fargo CEO said they were taken into Paulson's room and they were given until 5:00 to sign it. They weren't getting out until they did. They wanted it spread all over the banking business. Northern Trust was in there. They didn't want it. They took $1.6 billion. As you know, they went out and they sponsored the LA Riveria Open two weeks ago that Phil Mickelson barely hung on and won. [Applause]

And we find out they hired some liberals to entertain, but it still wasn't good enough. They hired Sheryl Crow. And they hired the rock crooner group Chicago, but they had the audacity, Northern Trust did, to entertain their clients, to try to reward their best customers, to get new customers, banking is in trouble, Northern Trust is trying to do what they always do, what all businesses do, and that is mine for new clients and reward existing good customers. Not since they took $1.6 billion, I guess. The haughty John Kerry wrote a piece of legislation said: He's getting sick and tired, sick and tired of these CEOs using taxpayer money to throw all these lavish parties. And I'm saying where do you get yours, Senator? [Applause]

Sad thing, sad thing is it works. They've created class envy in so many average Americans that they love hearing that. Yeah, you get even with those bank guys. How is it going to improve here? Let me ask a question for those of you watching my first national address. Take the favorite villain you've got, maybe it's John Thain at Merrill Lynch, because he used his own money, his company's own money, his company's own money, to redecorate a bathroom in an office for $1.2 million. By the way, to do that he had to hire a contractor. They got paid. Had to hire a designer and buy furniture, that's called stimulus. And he did it.

But all of a sudden John Thain's thrown out. John Thain is thrown out. He's humiliated and embarrassed; how dare he? He did it a year before they took the TARP money. And all these Congressmen are standing up saying this is not going to happen. We are not going to watch these people capping executive pay while Obama tries to live like one. You know, he's trying to emulate the lifestyle he is attacking. That's what liberals do. Two sets of rules: One for them; one for everybody else. But it's coming. See, if you think that John Thain or the Northern Trust CEO, if you love them getting attacked, if you love them being ripped, ask yourself the next day, do you have any more money in your pocket? Is your life any better because that guy got taken out or down by some haughty senator from Massachusetts?

If you ask yourself this, you'll realize your life is no better off. That the Democrats and Obama are asking you to feel better simply on the basis that they're going to get revenge for you, but your life isn't going to improve, somebody else's is just going to be destroyed and they want you to be happy over that. That's sick. And that is not the United States of America. [Applause] Besides, as far as John Kerry is concerned, if it wasn't for his varicose veins, he would be totally colorless. [Laughter]

Now let's talk about the conservative movement as it were. We, ladies and gentlemen, have challenges that are part and parcel of a movement that feels it has just suffered a humiliating defeat when it's not humiliating. This wasn't a landslide victory, 52 to, what, 46. Fifty-eight million people voted against Obama. There would have been more if we would have had a conservative nominee. [Applause] I don't mean that -- I mean that in an instructive way, as a lead-in to what I'm talking about here. No humiliating defeat here. I can't -- sometimes I get livid and angry. We do have an organizational problem. We have a challenge. We've got factions now within our own movement seeking power to dominate it, and worst of all to redefine it. Well, the Constitution doesn't need to be redefined. Conservative intellectuals, the Declaration of Independence does not need to be redefined and neither does conservatism. Conservatism is what it is and it is forever. It's not something you can bend and shape and flake and form. [Applause] Thank you. Thank you.

For the purposes of this occasion, I'm not going to mention any names, I bet with you I won't have to. People watching my first address to the nation might be curious what I'm talking about. They'll find out in due course, trust me on this. I cringed -- it might have been 2007, late 2007 or sometime during 2008, but a couple of prominent conservative but Beltway establishment media types began to write on the concept that the era of Reagan is over. [Crowd Booing]

And that we needed to adapt our appeal, because, after all, what's important in politics is winning elections. And so we have to understand that the American people, they want Big Government. We just have to find a way to tell them we're no longer opposed to that. We will come up with our own version of it that is wiser and smarter, but we've got to go get the Walmart voter, and we've got to get the Hispanic voter, and we've got to get the recalcitrant independent women. And I'm listening to this and I am just apoplectic: The era of Reagan is over? When the hell do you hear a Democrat say the era of FDR is over? You never hear it. Not only that, the President of the United States today thinks he's FDR, thinks he's Abraham Lincoln, and sometimes, Tuesday night, thinks he's Ronald Reagan. Our own movement has members trying to throw Reagan out while the Democrats know they can't accomplish what they want unless they appeal to Reagan voters. We have got to stamp this out within this movement, because it will tear us apart. It will guarantee we lose elections. [Applause]

We have to. You see, to me it's a no-brainer. It's not even something to me: How do you get rid of Reagan from conservatism? The blueprint -- the blueprint for landslide conservative victory is right there. Why in the hell do the smartest people in our room want to chuck it? I know why. I know exactly why. It's because they're embarrassed of some of the people who call themselves conservatives. These people in New York and Washington, cocktail elitists, they get made fun of when the next NASCAR race is on TV and their cocktail buds come up to them, those people are in your party? How do you put up with this? It would be easy to throw them overboard, so as to maintain these cocktail party/Beltway/New York City/inside-the-Beltway media relationships. But I tell you: This notion that Reaganism is dead, conservatism needs to be refined, let's take a look at this. We've got to go get the Walmart voter. I opened my remarks tonight by telling the people watching on Fox who we conservatives are. When I look out at you in this audience, I don't see a Walmart voter. And I don't see a black, and I don't see a woman, and I don't see a Hispanic. I see human beings who happen to be fortunate enough to be the luckiest people on Earth since you are Americans. [Applause]

Conservatism -- for us to make the decision that we've got to figure out policies, to get the Walmart voter -- psst, we've got most of them already, is the bottom line. Conservatism is a universal set of core principles. You don't check principles at the door. This is a battle that we're going to have. And there are egos involved here, too. When the situation like ours exists, there are people who want to lead it. They want to redefine it. Their egos are such that they want to be the next X, whoever it is. So there will be different factions lining up to try to define what conservatism is. And beware of those different factions who seek as part of their attempt to redefine conservatism, as making sure the liberals like us, making sure that the media likes us. They never will, as long as we remain conservatives. They can't possibly like us; they're our enemy. In a political arena of ideas, they're our enemy. They think we need to be defeated. Why do you think -- you all in this room know this. For those of you watching at home, my first address to the nation -- [Laughter] -- I'm sure you paid close enough attention, that you knew at one time Senator McCain was the favorite Republican of all the cable news networks and the Sunday shows. And they would just -- I mean their tongues would be on the floor. The media people (panting) when they knew McCain was coming. And they would treat McCain as the greatest guy in the world. Did you wonder why? You were told he was moderate. He was not strict. He was not an authoritarian, he was able to walk to the other side of the aisle, able to get along with the enemy. And everybody wants love and bipartisanship.

That's not why they invited Senator McCain. They invited Senator McCain because he happened to be the loudest at criticizing his own president and his own party and that's what they want, is people from our side -- and there will be factions in our movement, folks, who are going to make an effort to say we have to grow, we can't stay stale, I think I heard the term used the other day. Nothing stale about freedom. There's nothing stale about liberty. There's nothing stale about fighting for it. Nothing stale whatsoever. [Applause] Freedom. Are you getting tired of standing up, I don't blame you. By the way for those watching on TV you think the standing -- people are just tired. They've been up and out of their chairs 100 times here. [Applause] Thank you. Freedom -- freedom is the natural yearning of the human spirit as we were endowed by our creator. And the United States of America is the place in the world where that yearning flourishes, where freedom is expected because it's part of the way we're created.

I loved it when the Soviet Union went down and the wall went down and the liberals in our country said you know they may not be ready for freedom over there. They've been oppressed -- yes, liberals will gladly tell you who can have freedom and who can't. And that's what the pieces of legislation are all about, folks, freedom, liberty, economic prosperity, they're all entwined here. We'll have to as a conservative movement understand that our job, after we come to an agreement among ourselves, which shouldn't be hard but it's going to be difficult because the people that think they're smarter than everybody else are going to be out there forging alliances with people that try to make themselves look like new power brokers, and they will become the spokesmen, by the way.

By the way, explain that to you. This is a funny story. Show you how I can hijack a news cycle even by doing anything. The Tuesday before the inauguration, President Bush invited me to the Oval Office for lunch. And it was on and off the record, some of the conversations. And he brought out, interesting, at the end of it -- my birthday had been the day before. He brought out a chocolate birthday cake, a microphone, and stood beside me with Ed Gillespie and sang happy birthday. Photographers taking pictures. I wish my parents were alive. My parents wouldn't believe my life. They came out of the Great Depression. They didn't think it was possible for somebody who did not go to college -- and even for people who did -- they didn't think this was possible. Life has changed so much for the better in this country. That's why I cringe when I see what is in store.

So as I'm flying home from lunch, I'm watching television and I see that the word has leaked out that Obama is hosting a dinner with conservative media pundits at the home of George Will. I said: I wonder who these people are? [Laughter] In the media, one of them is going to have to leak it. Sure as heck, one did. Now, we all know who were there. And let's see -- I can't remember all the names, so I won't mention any. But let me tell you Obama's purpose. Does anybody really think that Barack Obama had dinner with a bunch of conservatives hoping they would change his mind?

CROWD: No!

RUSH: Hell, no. His purpose -- and his purpose really wasn't to change theirs -- his purpose was to anoint them as conservative spokesmen. These are the people that Obama's willing to break bread with. These happen -- some of the people there happen to be the people who think the era of Reagan is over, who believe that conservatism needs to be redefined. Of course Obama would try to lure them in. Well, all of a sudden I land. I get home about 5:00, and my e-mail is jammed with questions from reporters, are you, is that why you took the day off today? Is that why you're not on the air? Are you going to dinner with Obama? By the way, I left out a crucial part of the story. Was this a Monday, Kit? It was a Tuesday. I had forgotten to tell my audience that I was going to miss the next day. I signed off the show saying I'll see you tomorrow. That's the last thing I said. The staff reminded me you're not going to be here tomorrow. I came up with a plan, that the guest host the next day would say that I was called out of town to Washington at midnight the night before. Just an innocent little trick on the radio audience. Everybody picked that up and thinks I'm invited to the Obama dinner. So those people that were invited to it got less coverage than I did and I didn't even know about it. [Laughter] It was fun. [Applause]

Conservatives are naturally happy. We seek happiness. We pursue it. It's part of who we are. So what can you do? Live your life. I swear, folks, you do not know in just the everyday life that you live in your homes, your neighborhoods, the favorite word of this administration, your "communities." Remember the root word there is "commune." [Applause] Be happy, live your life according to your values and principles. Know you're going to fail, no human being is perfect, you're going to make mistakes, but live your life -- you'll be stunned at how many people you impress. Don't be afraid to tell children that they're wrong. They don't know what you do. They simply haven't lived long enough. It's not their fault, but they're being fed a bunch of garbage in school and don't be afraid to tell them that they're wrong.

Don't go the Oprah route and say gotta be friends with my parents, my kids, first and foremost. Understand they're going to hate you for a while and they're going to rebel against you and someday they're going to think you're the smartest person they ever met. But you owe them the truth. You owe them the truth about things. You owe them the truth about morality. You owe them the truth about values. [Applause] You owe them the truth about politics. Next thing, we've got to stop treating voters as children. [Applause] Somebody says they want something that's bad for them, do you give it to them just to be nice? Or do you tell them, regardless of their age, no, you shouldn't have that? Well, it's none of your business. Maybe not. And then you back out of it. But you still have to have the ability to tell people what's right and wrong. And that's not authoritative. That's not authoritarian. And it's not trying to deny somebody a good time. It's not trying to interrupt somebody's hedonism, pleasure, it's about all of us with shared values trying to make sure that people live the highest quality lives they can. Ultimately, it's their decision as to what they do. But the point is, don't treat them -- especially voters -- as kids just -- they say they want it okay we'll come up with a plan to give it to you.

Have any of you seen the movie -- I'd never heard of it, but I happened to get a DVD the other day. Anybody see the movie Swing Vote with Kevin Costner? You know, it's kind of a moronic movie like most things out of Hollywood are. But this is fascinating in the way -- tell you a short story, because a voter screwup in New Mexico there's one voter who is going to elect the president. His vote didn't count because his daughter voted for him. I won't give the whole story away. But New Mexico's electoral votes, New Mexico's electoral votes determined it. And they have a two-week period before this guy can vote again. So the challenger and the president both relocate to where this guy lives in New Mexico and they end up like the Democrat played by Dennis Hopper stands for antiabortion. The Democrat candidate comes out with a commercial for life. The Republican candidate comes out, because this guy is an idiot and doesn't know what he believes, and every utterance that he makes these politicians react to it throwing their principles on the floor, just to get his vote. Sadly, this is what some of the conservative intellectuals in our movement want to do, essentially. And that we cannot do. We've got to stand for what we believe and treat people as adults and understand they can learn. [Applause] Go optimism.

Joe Biden, ladies and gentlemen, was watching CBS -- when did you start here? Thursday. You might have seen this. The days run together. It might have been Wednesday, but Biden was on the CBS Early Show. And he was asked -- the anchorette -- sorry. I'm trying to change my ways. I've been doing women summit programs so not to offend women. The anchor, Maggie Rodriguez, went out and got some man-on-the-street questions. And one guy, woman, I think question for Biden. What is in the stimulus package for small business? Biden was clearly stumped because there isn't anything in the stimulus package for small business. So what Biden said, honest to God, what Biden said was: Well, if there's a bridge to your small business, we're going to make sure that bridge stays open so that you can get to your small business and your customers -- honest. I kid you not. Now, of course, the media today is a bunch of hacks, they're out there as PR agents; they're starting to get a little embarrassed. Maggie Rodriguez says, Senator Biden, there's a website that answers all these questions. What is the name of the website and Biden says I don't know. He looks off stage. "Does somebody have the website number?" [Applause] I realize those of you watching at home during my first address to the nation, you have never heard liberal Democrats be made fun of in this way. Get used to it. [Applause]

Two other things and we'll get out of here contractually over time. The president's stimulus package, the TARP, the whatever, the budget, relies on one thing for its success. Well, aside from authoritarian government power. It relies on the complacency of the American people. It relies on their belief that they can convince the American people that there's such a crisis that only government, the only entity that can fix it is government, as Obama has said. So they get complacent and they sit around and they wait. See, this is something liberals will never understand about the United States of America and it's right under their noses, right in front of their faces, we are a competitive people. We strive, enough of us do, to be the best. We strive to win. We strive to avoid defeat. Enough of us still do. Don't believe otherwise. The liberals have made efforts to shut that aspect of our nature down. Wherever you live, I am certain that you, when you were a child or your kids today in youth sports are told not to keep score, because the losers, it's just not fair. They'd be humiliated, especially if one girl's basketball team can defeat another one 100 to nothing. And let's fire the coach who put that game together. It's so unfair. So let's not keep score. Well, here's the dirty little secret. The kids are keeping score. [Applause] You know they are. They don't want to lose. They know what winning and losing is. They're saying, well, why go out there and put on the pads and play football or T-Ball if the objective here is to not keep score. So they're keeping score. They get in the car with mom and dad and they tell mom and dad: Yeah, we kicked their butts tonight. Wait a minute, I thought you weren't keeping score. They weren't officially. They keep score. We're competitive people. Adults are doing the same thing.

It didn't take long for people to get fired up when they figured out that they're going to be paying mortgages for people who should never have been lent money in the first place for the bogus excuse of maintaining property values in the neighborhood. This is something that -- the complacency of the American people is something they're going to rely on along with their authoritarian efforts to control it. But they will not succeed at this. Because we're not quitters. We don't acquiesce. We're not going to give up the American dream and watch idly while it is restructured and transformed.
[Applause]

As I say, we want the best: Happiness for everybody. Now, about my still-to-me mysteriously controversial comment that I hope President Obama fails. I was watching the Super Bowl. And as you know, I love the Pittsburgh Steelers. [Cheers and Applause] So they have this miraculous scoring drive that puts them up by four, 15 seconds left. Kurt Warner on the field for the Cardinals. And I sure as heck want you to know I hope he failed. I did not want the Cardinals to win. I wanted Warner to make the biggest fool of himself possible. I wanted a sack, I wanted anything. I wanted the Steelers to win. I wanted to win. I wanted the Cardinals to fail.

This notion that I want the President to fail, folks, this shows you a sign of the problem we've got. That's nothing more than common sense and to not be able to say it, why in the world do I want what we just described, rampant government growth indebtedness, wealth that's not even being created yet that is being spent, what is in this? What possibly is in this that anybody of us wants to succeed? Did the Democrats want the war on Iraq to fail!

CROWD: Yes!

RUSH: They certainly did. They not only wanted the war in Iraq to fail, they proclaimed it a failure. There's Dingy Harry Reid waiving a white flag: [doing Harry Reid impression] "This war is lost. This war is" -- [Cheers and Applause] They called General Petraeus a liar before he even testified. Mrs. Clinton -- [Crowd Booing] -- said she had to, willingly suspend disbelief in order to listen to Petraeus. We're in the process of winning the war. The last thing they wanted was to win. They hoped George Bush failed. So what is so strange about being honest to say that I want Barack Obama to fail if his mission is to restructure and reform this country so that capitalism and individual liberty are not its foundation? Why would I want that to succeed? [Applause]

Let me add a caveat here. My friends, I know what's going on. I know what's going on. We're in the aspects here of an historic presidency. I know that. But let me be honest again. I got over the historical aspects of this in November. President Obama is our president. President Obama stands for certain things. I don't care, he could be a Martian. He could be from Michigan, I don't know -- just kidding. Doesn't matter to me what his race is. It doesn't matter. He's liberal is what matters to me. And his articulated -- his articulated plans scare me. Now, I understand we can't say we want the President to fail, Mr. Limbaugh. That's like saying -- this is the voice of the New Castrati, by the way, guys who have lost their guts. You can't say Mr. Limbaugh that you want the President to fail because that's like saying you want the country to fail. It's the opposite. I want the country to survive. I want the country to succeed. [Cheers and Applause] [Crowd Chanting "USA" ]

I want the country to survive as we have known it, as you and I were raised in it, is what I mean. Now, I have been called -- and I can take it. Pioneers take the arrows, I don't mind what anybody says about me, any time ever. I don't have time for it. I don't give other people the power to offend me. And you shouldn't either, by the wasted time being offended.[Applause]

I mean, there's some people you can't say you want the President to fail. Ladies and gentlemen of the United States, the Democrat Party has actively not just sought the failure of Republican presidents and policies and now wars for the first time, the Democrat Party doesn't stop at failure. Talk to Judge Robert Bork or Justice Clarence Thomas about how they tried to destroy lives, reputations and character, and I'm supposed to say I don't want the President to fail? [Applause] We're in for a real battle. We are talking about the United States of America -- and there will always be an America, don't misunderstand me -- we're talking about it remaining the country we were all born into and reared and grown into. And it's under assault. It's always under assault. But it's never been under assault like this from within before. And it's a serious, serious battle.

So as you leave here, as you leave here optimism, confidence, not guilt, it's not worth it. There's nothing to be guilty about. Don't treat people as children. Respect their intelligence. Realize that there's a way to persuade people. Sometimes the worst way is to get in their face and point a finger. Set up a set of circumstances where the conclusion is obvious. Let them think they came up with the idea themselves. They'll think they're smart that they figured it out. Who cares how you persuade them, the fact they can be persuaded is factually correct, it's possible. But the main thing to do here is stop thinking that we are a minority. Stop thinking that it is being in the minority that liberates you. It is your beliefs. It is your core principles, it is your confidence that liberates you. It's not being in the minority.

In fact, for those of you watching my first national address and still hanging in there, we really are not that happy about being a minority and we're out to change it. [Applause] So I have -- I've gone over my allotted time by an hour. [Applause]

I want to thank all of you so much for everything that you have meant to me and my family in my life.

CROWD: Thank you.

RUSH: I understand it's mutual. And I hear people -- you have made my heart grow so much that it barely fits in my chest cavity here tonight. But the things that by virtue of your listening to my radio show and being active in this movement that we all cherish and love, you have meant more to me, my family and my life than whatever it is I might mean to you, even though I know that's considerable. [Applause] You still can't outdo the absolute joy and awe and thanks I feel for all of you. I've been doing this for 20 years and the numbers just keep growing. And I can't tell you how appreciative I am and proud to be in a movement with the same passions, desires and core beliefs that all of you have, because we know that it's right for the country, and we know it's right for people. It's not something that has to be forced on them. It's not something that has to be authoritatively pressed on them. We are what is, and that's why we are an enemy because we're effective. The people that do want control look at us as the enemy. We're always going to be -- don't ever measure your success by how many Drive-By Media reports you see that are fair to us. Never going to happen. Don't measure your success by how many people like you. Just worry about how they vote. And then at the end of the day how they live, but that's really none of your business once they close the doors. Thank you all very much. It's been great.

Obama's Abortion Extremism -- Robert P. George -- October 14, 2008

2008-12-21T09:22:00.001-06:00

Sen. Barack Obama's views on life issues ranging from abortion to embryonic stem cell research mark him as not merely a pro-choice politician, but rather as the most extreme pro-abortion candidate to have ever run on a major party ticket.

Barack Obama is the most extreme pro-abortion candidate ever to seek the office of President of the United States. He is the most extreme pro-abortion member of the United States Senate. Indeed, he is the most extreme pro-abortion legislator ever to serve in either house of the United States Congress.

Yet there are Catholics and Evangelicals-even self-identified pro-life Catholics and Evangelicals—who aggressively promote Obama's candidacy and even declare him the preferred candidate from the pro-life point of view.

What is going on here?

I have examined the arguments advanced by Obama's self-identified pro-life supporters, and they are spectacularly weak. It is nearly unfathomable to me that those advancing them can honestly believe what they are saying. But before proving my claims about Obama's abortion extremism, let me explain why I have described Obama as "pro-abortion" rather than "pro-choice."

According to the standard argument for the distinction between these labels, nobody is pro-abortion. Everybody would prefer a world without abortions. After all, what woman would deliberately get pregnant just to have an abortion? But given the world as it is, sometimes women find themselves with unplanned pregnancies at times in their lives when having a baby would present significant problems for them. So even if abortion is not medically required, it should be permitted, made as widely available as possible and, when necessary, paid for with taxpayers' money.

The defect in this argument can easily be brought into focus if we shift to the moral question that vexed an earlier generation of Americans: slavery. Many people at the time of the American founding would have preferred a world without slavery but nonetheless opposed abolition. Such people—Thomas Jefferson was one—reasoned that, given the world as it was, with slavery woven into the fabric of society just as it had often been throughout history, the economic consequences of abolition for society as a whole and for owners of plantations and other businesses that relied on slave labor would be dire. Many people who argued in this way were not monsters but honest and sincere, albeit profoundly mistaken. Some (though not Jefferson) showed their personal opposition to slavery by declining to own slaves themselves or freeing slaves whom they had purchased or inherited. They certainly didn't think anyone should be forced to own slaves. Still, they maintained that slavery should remain a legally permitted option and be given constitutional protection.

Would we describe such people, not as pro-slavery, but as "pro-choice"? Of course we would not. It wouldn't matter to us that they were "personally opposed" to slavery, or that they wished that slavery were "unnecessary," or that they wouldn't dream of forcing anyone to own slaves. We would hoot at the faux sophistication of a placard that said "Against slavery? Don't own one." We would observe that the fundamental divide is between people who believe that law and public power should permit slavery, and those who think that owning slaves is an unjust choice that should be prohibited.

Just for the sake of argument, though, let us assume that there could be a morally meaningful distinction between being "pro-abortion" and being "pro-choice." Who would qualify for the latter description? Barack Obama certainly would not. For, unlike his running mate Joe Biden, Obama does not think that abortion is a purely private choice that public authority should refrain from getting involved in. Now, Senator Biden is hardly pro-life. He believes that the killing of the unborn should be legally permitted and relatively unencumbered. But unlike Obama, at least Biden has sometimes opposed using taxpayer dollars to fund abortion, thereby leaving Americans free to choose not to implicate themselves in it. If we stretch things to create a meaningful category called "pro-choice," then Biden might be a plausible candidate for the label; at least on occasions when he respects your choice or mine not to facilitate deliberate feticide.

The same cannot be said for Barack Obama. For starters, he supports legislation that would repeal the Hyde Amendment, which protects pro-life citizens from having to pay for abortions that are not necessary to save the life of the mother and are not the result of rape or incest. The abortion industry laments that this longstanding federal law, according to the pro-abortion group NARAL, "forces about half the women who would otherwise have abortions to carry unintended pregnancies to term and bear children against their wishes instead." In other words, a whole lot of people who are alive today would have been exterminated in utero were it not for the Hyde Amendment. Obama has promised to reverse the situation so that abortions that the industry complains are not happening (because the federal government is not subsidizing them) would happen. That is why people who profit from abortion love Obama even more than they do his running mate.

But this barely scratches the surface of Obama's extremism. He has promised that "the first thing I'd do as President is sign the Freedom of Choice Act" (known as FOCA). This proposed legislation would create a federally guaranteed "fundamental right" to abortion through all nine months of pregnancy, including, as Cardinal Justin Rigali of Philadelphia has noted in a statement condemning the proposed Act, "a right to abort a fully developed child in the final weeks for undefined 'health' reasons." In essence, FOCA would abolish virtually every existing state and federal limitation on abortion, including parental consent and notification laws for minors, state and federal funding restrictions on abortion, and conscience protections for pro-life citizens working in the health-care industry-protections against being forced to participate in the practice of abortion or else lose their jobs. The pro-abortion National Organization for Women has proclaimed with approval that FOCA would "sweep away hundreds of anti-abortion laws [and] policies."

It gets worse. Obama, unlike even many "pro-choice" legislators, opposed the ban on partial-birth abortions when he served in the Illinois legislature and condemned the Supreme Court decision that upheld legislation banning this heinous practice. He has referred to a baby conceived inadvertently by a young woman as a "punishment" that she should not endure. He has stated that women's equality requires access to abortion on demand. Appallingly, he wishes to strip federal funding from pro-life crisis pregnancy centers that provide alternatives to abortion for pregnant women in need. There is certainly nothing "pro-choice" about that.

But it gets even worse. Senator Obama, despite the urging of pro-life members of his own party, has not endorsed or offered support for the Pregnant Women Support Act, the signature bill of Democrats for Life, meant to reduce abortions by providing assistance for women facing crisis pregnancies. In fact, Obama has opposed key provisions of the Act, including providing coverage of unborn children in the State Children's Health Insurance Program (S-CHIP), and informed consent for women about the effects of abortion and the gestational age of their child. This legislation would not make a single abortion illegal. It simply seeks to make it easier for pregnant women to make the choice not to abort their babies. Here is a concrete test of whether Obama is "pro-choice" rather than pro-abortion. He flunked. Even Senator Edward Kennedy voted to include coverage of unborn children in S-CHIP. But Barack Obama stood resolutely with the most stalwart abortion advocates in opposing it.

It gets worse yet. In an act of breathtaking injustice which the Obama campaign lied about until critics produced documentary proof of what he had done, as an Illinois state senator Obama opposed legislation to protect children who are born alive, either as a result of an abortionist's unsuccessful effort to kill them in the womb, or by the deliberate delivery of the baby prior to viability. This legislation would not have banned any abortions. Indeed, it included a specific provision ensuring that it did not affect abortion laws. (This is one of the points Obama and his campaign lied about until they were caught.) The federal version of the bill passed unanimously in the United States Senate, winning the support of such ardent advocates of legal abortion as John Kerry and Barbara Boxer. But Barack Obama opposed it and worked to defeat it. For him, a child marked for abortion gets no protection-even ordinary medical or comfort care-even if she is born alive and entirely separated from her mother. So Obama has favored protecting what is literally a form of infanticide.

You may be thinking, it can't get worse than that. But it does.

For several years, Americans have been debating the use for biomedical research of embryos produced by in vitro fertilization (originally for reproductive purposes) but now left in a frozen condition in cryopreservation units. President Bush has restricted the use of federal funds for stem-cell research of the type that makes use of these embryos and destroys them in the process. I support the President's restriction, but some legislators with excellent pro-life records, including John McCain, argue that the use of federal money should be permitted where the embryos are going to be discarded or die anyway as the result of the parents' decision. Senator Obama, too, wants to lift the restriction.

But Obama would not stop there. He has co-sponsored a bill-strongly opposed by McCain-that would authorize the large-scale industrial production of human embryos for use in biomedical research in which they would be killed. In fact, the bill Obama co-sponsored would effectively require the killing of human beings in the embryonic stage that were produced by cloning. It would make it a federal crime for a woman to save an embryo by agreeing to have the tiny developing human being implanted in her womb so that he or she could be brought to term. This "clone and kill" bill would, if enacted, bring something to America that has heretofore existed only in China-the equivalent of legally mandated abortion. In an audacious act of deceit, Obama and his co-sponsors misleadingly call this an anti-cloning bill. But it is nothing of the kind. What it bans is not cloning, but allowing the embryonic children produced by cloning to survive.

Can it get still worse? Yes.

Decent people of every persuasion hold out the increasingly realistic hope of resolving the moral issue surrounding embryonic stem-cell research by developing methods to produce the exact equivalent of embryonic stem cells without using (or producing) embryos. But when a bill was introduced in the United States Senate to put a modest amount of federal money into research to develop these methods, Barack Obama was one of the few senators who opposed it. From any rational vantage point, this is unconscionable. Why would someone not wish to find a method of producing the pluripotent cells scientists want that all Americans could enthusiastically endorse? Why create and kill human embryos when there are alternatives that do not require the taking of nascent human lives? It is as if Obama is opposed to stem-cell research unless it involves killing human embryos.

This ultimate manifestation of Obama's extremism brings us back to the puzzle of his pro-life Catholic and Evangelical apologists.

They typically do not deny the facts I have reported. They could not; each one is a matter of public record. But despite Obama's injustices against the most vulnerable human beings, and despite the extraordinary support he receives from the industry that profits from killing the unborn (which should be a good indicator of where he stands), some Obama supporters insist that he is the better candidate from the pro-life point of view.

They say that his economic and social policies would so diminish the demand for abortion that the overall number would actually go down-despite the federal subsidizing of abortion and the elimination of hundreds of pro-life laws. The way to save lots of unborn babies, they say, is to vote for the pro-abortion-oops! "pro-choice"-candidate. They tell us not to worry that Obama opposes the Hyde Amendment, the Mexico City Policy (against funding abortion abroad), parental consent and notification laws, conscience protections, and the funding of alternatives to embryo-destructive research. They ask us to look past his support for Roe v. Wade, the Freedom of Choice Act, partial-birth abortion, and human cloning and embryo-killing. An Obama presidency, they insist, means less killing of the unborn.

This is delusional.

We know that the federal and state pro-life laws and policies that Obama has promised to sweep away (and that John McCain would protect) save thousands of lives every year. Studies conducted by Professor Michael New and other social scientists have removed any doubt. Often enough, the abortion lobby itself confirms the truth of what these scholars have determined. Tom McClusky has observed that Planned Parenthood's own statistics show that in each of the seven states that have FOCA-type legislation on the books, "abortion rates have increased while the national rate has decreased." In Maryland, where a bill similar to the one favored by Obama was enacted in 1991, he notes that "abortion rates have increased by 8 percent while the overall national abortion rate decreased by 9 percent." No one is really surprised. After all, the message clearly conveyed by policies such as those Obama favors is that abortion is a legitimate solution to the problem of unwanted pregnancies—so clearly legitimate that taxpayers should be forced to pay for it.

But for a moment let's suppose, against all the evidence, that Obama's proposals would reduce the number of abortions, even while subsidizing the killing with taxpayer dollars. Even so, many more unborn human beings would likely be killed under Obama than under McCain. A Congress controlled by strong Democratic majorities under Harry Reid and Nancy Pelosi would enact the bill authorizing the mass industrial production of human embryos by cloning for research in which they are killed. As president, Obama would sign it. The number of tiny humans created and killed under this legislation (assuming that an efficient human cloning technique is soon perfected) could dwarf the number of lives saved as a result of the reduced demand for abortion-even if we take a delusionally optimistic view of what that number would be.

Barack Obama and John McCain differ on many important issues about which reasonable people of goodwill, including pro-life Americans of every faith, disagree: how best to fight international terrorism, how to restore economic growth and prosperity, how to distribute the tax burden and reduce poverty, etc.

But on abortion and the industrial creation of embryos for destructive research, there is a profound difference of moral principle, not just prudence. These questions reveal the character and judgment of each man. Barack Obama is deeply committed to the belief that members of an entire class of human beings have no rights that others must respect. Across the spectrum of pro-life concerns for the unborn, he would deny these small and vulnerable members of the human family the basic protection of the laws. Over the next four to eight years, as many as five or even six U.S. Supreme Court justices could retire. Obama enthusiastically supports Roe v. Wade and would appoint judges who would protect that morally and constitutionally disastrous decision and even expand its scope. Indeed, in an interview in Glamour magazine, he made it clear that he would apply a litmus test for Supreme Court nominations: jurists who do not support Roe will not be considered for appointment by Obama. John McCain, by contrast, opposes Roe and would appoint judges likely to overturn it. This would not make abortion illegal, but it would return the issue to the forums of democratic deliberation, where pro-life Americans could engage in a fair debate to persuade fellow citizens that killing the unborn is no way to address the problems of pregnant women in need.

What kind of America do we want our beloved nation to be? Barack Obama's America is one in which being human just isn't enough to warrant care and protection. It is an America where the unborn may legitimately be killed without legal restriction, even by the grisly practice of partial-birth abortion. It is an America where a baby who survives abortion is not even entitled to comfort care as she dies on a stainless steel table or in a soiled linen bin. It is a nation in which some members of the human family are regarded as inferior and others superior in fundamental dignity and rights. In Obama's America, public policy would make a mockery of the great constitutional principle of the equal protection of the law. In perhaps the most telling comment made by any candidate in either party in this election year, Senator Obama, when asked by Rick Warren when a baby gets human rights, replied: "that question is above my pay grade." It was a profoundly disingenuous answer: For even at a state senator's pay grade, Obama presumed to answer that question with blind certainty. His unspoken answer then, as now, is chilling: human beings have no rights until infancy—and if they are unwanted survivors of attempted abortions, not even then.

In the end, the efforts of Obama's apologists to depict their man as the true pro-life candidate that Catholics and Evangelicals may and even should vote for, doesn't even amount to a nice try. Voting for the most extreme pro-abortion political candidate in American history is not the way to save unborn babies.

Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. He is a member of the President's Council on Bioethics and previously served on the United States Commission on Civil Rights. He sits on the editorial board of Public Discourse.

_________________________________________________

Originally Published -- The Witherspoon Institute, October 14, 2008

A Quick Way Forward After Boumediene -- Andrew C. McCarthy -- June 16, 2008

2008-06-17T17:30:00.002-05:00

Either Congress reasserts itself, or terror-friendly bedlam ensues.

By Andrew C. McCarthy

It is difficult to single out the most outrageous aspect of Justice Anthony Kennedy’s majority opinion in the Supreme Court’s cataclysmic Boumediene ruling last Thursday: The reckless vesting of constitutional rights in aliens whose only connection with our body politic is their bloody jihad against Americans; the roughshod ride over binding precedent to accomplish that feat; or the smug arrogance perfectly captured by dissenting Chief Justice John Roberts’s description of a “constitutional bait and switch” — a Court that first beseeches the political branches to enact a statutory procedure for handling combatant detentions, and then, once a thoughtful law is compliantly passed, invalidates the effort for its failure to satisfy the eccentric predilections of five lawyers.

What is done, however, is done.

HANDWRITING ON THE WALL

It should never have come to this. Ever since the Bush administration quite rightly called for a new enforcement paradigm after the 9/11 attacks — the criminal-justice system having proved itself grossly inadequate to protect national security during the Nineties — it has been apparent that shifting to a pure military system was problematic.

The war on terror is not like other wars. No war has a determinate end, but this one does not have a foreseeable ending scenario. With radical Islam, there will be no treaty, no terms of surrender, no conquering enemy territory. Instead, there is only vigilance until the enemy’s capacity to project power is quelled. Because of that, strict application of the laws of war — which permit indefinite detention until war’s end — strikes our influential legal elites as unduly onerous.

Our enemies, moreover, are terrorists who operate in the shadows, in civilian garb not military insignia. In a just world, that would inure to their detriment. In the world we inhabit, it perversely benefits them by sowing doubt about their status. It makes plausible the possibility that we have scooped up at least some people in error.

The public anger over 9/11 has faded. With a relentless campaign, fired by sympathetic media coverage, our legal elites have succeeded in raising popular concerns about the specter of innocents being held in perpetuity at the whim of the executive, without an opportunity to challenge their detention before an independent judge.

This was more of a political challenge than a legal one. Long ago, Congress and the administration should have joined forces to forge a comprehensive system that would answer those concerns. To their credit, the political branches did at least try to shore up the military detention system by providing, for the first time in history, enemy access to a civilian court — the D.C. Circuit federal appeals court — so jihadists could challenge the completed military proceedings. It is beyond arrogance that five Supreme Court justices did not allow that system to work; that, to bask in international huzzahs, they scrapped it before the D.C. Circuit could wrestle with a single case on a concrete record — before the tribunals could prove they were not kangaroo courts after all.

But let’s face it: The handwriting for what happened last Thursday has been on the wall since 2004. That’s when the Court, in a fit of imperious recklessness nearly the equal of Boumediene, decided in Rasul v. Bush that the jihadists had statutory habeas corpus rights. The handwriting was brought into starker relief in 2006 when, in Hamdan v. Rumsfeld, the Court selectively mined and tortured the language of the Geneva Conventions to vest the jihadists with trial rights under Geneva’s Common Article 3.

This has been coming at us like a runaway freight train. Congress and the administration should have seen it and stopped it. They failed to act, so the cure will be harder now — though we must, for the sake of our security, press ahead with a legislative cure.

THE FOLLY OF PUTTING COURTS IN CHARGE

Why harder? Well, until last Thursday, alien enemy combatants had no American constitutional rights. Their rights were limited to whatever the political branches, chiefly Congress, chose to grant them. If Congress, with the administration’s help, had undertaken to devise a comprehensive system of rules and procedures for terrorist detention and trial — what I have several times since 2004 proposed as a “national-security court” — it is very likely that the Supreme Court would have stayed its hand. Indeed, the justices originally declined to hear the Boumediene case before changing their minds at the end of the 2007 term, as public criticism of the military system mounted.

But the political branches ignored the neon signs. Now the Court has decided that the combatants have constitutional habeas rights. If you can follow this, the bloc of liberal justices reasons that the framers designed our fundamental law to empower enemies of the American people to use the American people’s courts as a weapon to compel the American people’s commander-in-chief to justify his actions during a war overwhelmingly authorized by the American people’s elected representatives . . . even as those enemies continue killing Americans.

The upshot of the ruling is that the judiciary, not Congress, could now become the master of deciding what rights our enemies have in wartime. When rights are based on the Constitution, rather than on statutes, Congress may not reduce them. Courts assert the power to define their ultimate parameters.

In the context of war powers — powers that are political, not legal — that would be a disaster. Courts are not responsible for our national security. Their task is to ensure that parties litigating legal cases before them are afforded due process. Moreover, the judicial tendency, when the United States is a party, is to bend over backwards to eliminate not just the reality but the mere perception of unfairness to the adversary — even if that adversary happens to be a ruthless, incorrigible enemy of the United States who would, given his druthers, torch the Constitution and install freedom-hating sharia law.

Worse, while waging war is a society’s ultimate political act, and thus suited for management only by the society’s politically accountable officials, judges are insulated from the political process. They needn’t fear being removed or voted out of office if they impose a regime that is overly solicitous of terrorist rights and heedless of national security. They can do what Leftist politicians would do if they weren’t so worried about the ballot box.

This perfect storm of institutional responsibility, natural proclivity, and political immunity hardwires judges to ratchet up due process demands over time. In the warfare context, the price will be paid in American lives.

The most reprehensible aspect of the Boumediene ruling is thus Justice Kennedy’s diktat that all “questions regarding the legality of the detention [of combatants] are to be resolved in the first instance by the District Court” — as if Congress, the law writing branch of our government, had nothing to say about them.

Congress must ignore that brazen overstatement. Boumediene is a terrible decision, but all it means for the moment is that the jihadists held at Guantanamo Bay have been given the opportunity to press their cases — i.e., to seek their release from custody — in the federal district courts. The combatants have not been ordered released, and the narrow majority did not presume to prescribe a procedure for how the district courts should handle those cases.

THE WAY FORWARD

That is the job of Congress, and it must act now. Bear in mind, even in the civilian-justice system, where the judicial competence is generally undeniable, it is Congress that enacts rules of procedure and evidence. We do not leave judges free to make it up as they go along. How much less should we do so with respect to combatant detention — a war power as to which judges have no institutional competence?

There may not be time now for ambitious, comprehensive projects like sculpting a national-security court. Boumediene has produced a crisis that demands an immediate fix. But Congress could very quickly accomplish the more modest task of enacting rules and procedures for combatant habeas proceedings. In fact, there is already a model of sorts.

Long ago, our lawmakers enacted a statutory scheme to control pretrial detention in federal criminal cases. It is codified at Section 3142 of Title 18, United States Code. In cases involving the most serious charges and defendants with the most vicious criminal histories, Congress has directed courts to grant the government a presumption in favor of detention. In detention hearings, furthermore, the law permits the parties to proceed by offering hearsay and attorney proffers of evidence; the presentation of witnesses is rare, and needn’t be allowed at all. In addition, a court considering detention is entitled to rely on any information developed in other proceedings — including on the fact that a grand jury has found probable cause that the defendant committed the alleged crime.

Mind you, that is in civilian criminal proceedings where the defendant is presumed innocent. We have long permitted lengthy periods of incarceration without trial, much less conviction, and this system has repeatedly been upheld in the face of all manner of constitutional challenge.

Obviously, being held as an alien enemy combatant in a terrorist war against the United States is a far more serious matter than even the drug and violent crimes (to say nothing of flight risks posed by foreign defendants) that routinely result in civilian pretrial detention. Thus, Congress could quickly enact a statute requiring the district courts in combatant habeas cases to afford the commander-in-chief a presumption mandating detention. That is, if the government established a rational basis for believing the detainee was an enemy combatant, he would be ordered detained unless the detainee proved beyond a reasonable doubt that he was not an enemy combatant.

Congress could provide for the presentation of evidence by hearsay, proffer, and affidavit — with a directive that the court may not compel the government (particularly, the military and intelligence community) to produce witnesses for testimony in court. It could provide for classified intelligence to be presented to the judge ex parte, with only a non-classified summary provided to the combatant. It could require the court to give deference during wartime to the conclusion of combatant status review tribunals already conducted by the military (allowing judges to disregard those conclusions only upon a showing that the conclusion was irrational — the same standard that compels federal appeals courts, in every single civilian criminal case, to refrain from disturbing a trial court’s findings of fact).

To promote efficiency, since the issues in these cases are likely to be repetitive, Congress could also direct that all petitions be filed in the District of Columbia, with all appeals to the D.C. Circuit and, ultimately, the Supreme Court. Though I would prefer to see the cases directed to a specialized court, it is not practical to expect one could be designed in the short-term. We need a solution that can be implemented tomorrow.

If Congress were to enact such a law, patterned on the pretrial detention statute but properly imposing greater burdens on petitioners who are alleged to be wartime enemies rather than mere criminals, the result would be that only the most egregious miscarriage of justice would result in a finding that a detainee was not an enemy combatant. That is as it should be — especially given that (a) alien enemy combatants have never before been afforded such rights and (b) only four years ago, in Hamdi v. Rumsfeld, the Supreme Court itself said judicial deference to the commander-in-chief was due even if an alleged combatant was an American citizen.

We must, naturally, anticipate that the federal courts will find the occasional, egregious miscarriage of justice. Thus Congress should also provide for what would happen to such a combatant. In short, he should be detained until he can be either repatriated to his native country or sent to a country of our choosing which is willing to receive him; under no circumstances should he be released into the United States.

On that score, we must be mindful of an oft-overlooked fact: Unlike American citizens who file habeas-corpus claims challenging their detention after conviction in civilian cases, the alien enemy combatants making war on us are not relying solely — or even principally — on legal proceedings. To the contrary, they have governments aggressively pursuing their release by diplomatic means. That is why the detainee population at Gitmo is down to about 270 when once it was over 800.

Naturally, Sen. Barack Obama and other hard-Left Democrats are thrilled with Boumediene. They are enthused by the prospect that federal judges, if left to their own devices, could turn these proceedings into full-blown trials, with all the constitutional protections they would gladly give our enemies if they thought voters would let them get away with it.

We shouldn’t let them get away with it.

Unduly empowered by the bedlam of unguided judicial proceedings, many jihadists will be freed. If that happens, Americans will be killed. It is that stark, and it should be that intolerable. It is the solemn responsibility of our lawmakers to prevent that outcome. With an election looming, with nearly 200,000 young Americans putting their lives on the line, and with an enemy working energetically to reprise 9/11, every member of Congress should be challenged to tell us where he or she stands on Boumediene and its aftermath.

--Andrew C. McCarthy, June 16, 2008
National Review Online

--------------
— Andrew C. McCarthy is author of Willful Blindness: Memoir of the Jihad and director of the Center for Law and Counterterrorism at the Foundation for the Defense of Democracies.

The Supreme Court Goes to War -- John Yoo -- June 17, 2008

2008-06-17T16:59:00.005-05:00

Last week's Supreme Court decision in Boumediene v. Bush has been painted as a stinging rebuke of the administration's antiterrorism policies. From the celebrations on most U.S. editorial pages, one might think that the court had stopped a dictator from trampling civil liberties. Boumediene did anything but. The 5-4 ruling is judicial imperialism of the highest order.

Boumediene should finally put to rest the popular myth that right-wing conservatives dominate the Supreme Court. Academics used to complain about the Rehnquist Court's "activism" for striking down minor federal laws on issues such as whether states are immune from damage lawsuits, or if Congress could ban handguns in school. Justice Anthony Kennedy -- joined by the liberal bloc of Justices John Paul Stevens, David Souter, Ruth Ginsburg and Stephen Breyer -- saves his claims of judicial supremacy for the truly momentous: striking down a wartime statute, agreed upon by the president and large majorities of Congress, while hostilities are ongoing, no less.
[The Supreme Court Goes to War]

First out the window went precedent. Under the writ of habeas corpus, Americans (and aliens on our territory) can challenge the legality of their detentions before a federal judge. Until Boumediene, the Supreme Court had never allowed an alien who was captured fighting against the U.S. to use our courts to challenge his detention.

In World War II, no civilian court reviewed the thousands of German prisoners housed in the U.S. Federal judges never heard cases from the Confederate prisoners of war held during the Civil War. In a trilogy of cases decided at the end of World War II, the Supreme Court agreed that the writ did not benefit enemy aliens held outside the U.S. In the months after the 9/11 attacks, we in the Justice Department relied on the Supreme Court's word when we evaluated Guantanamo Bay as a place to hold al Qaeda terrorists.

The Boumediene five also ignored the Constitution's structure, which grants all war decisions to the president and Congress. In 2004 and 2006, the Court tried to extend its reach to al Qaeda terrorists held at Guantanamo Bay. It was overruled twice by Congress, which has the power to define the jurisdiction of the federal courts. Congress established its own procedures for the appeal of detentions.

Incredibly, these five Justices have now defied the considered judgment of the president and Congress for a third time, all to grant captured al Qaeda terrorists the exact same rights as American citizens to a day in civilian court.

Judicial modesty, respect for the executive and legislative branches, and pure common sense weren't concerns here either. The Court refused to wait and see how Congress's 2006 procedures for the review of enemy combatant cases work. Congress gave Guantanamo Bay prisoners more rights than any prisoners of war, in any war, ever. The justices violated the classic rule of self-restraint by deciding an issue not yet before them.

Judicial micromanagement will now intrude into the conduct of war. Federal courts will jury-rig a process whose every rule second-guesses our soldiers and intelligence agents in the field. A judge's view on how much "proof" is needed to find that a "suspect" is a terrorist will become the standard applied on the battlefield. Soldiers will have to gather "evidence," which will have to be safeguarded until a court hearing, take statements from "witnesses," and probably provide some kind of Miranda-style warning upon capture. No doubt lawyers will swarm to provide representation for new prisoners.

So our fighting men and women now must add C.S.I. duties to that of capturing or killing the enemy. Nor will this be the end of it. Under Boumediene's claim of judicial supremacy, it is only a hop, skip and a jump from judges second-guessing whether someone is an enemy to second-guessing whether a soldier should have aimed and fired at him.

President Bush has declared, rightly, that the government will abide by the decision. No American lives are yet imperiled, as the courts will have to wrestle with the cases for months, if not years. But the upshot of Boumediene is that courts will release detainees from Guantanamo Bay, or the Defense Department will do so voluntarily, in the near future.

Just as there is always the chance of a mistaken detention, there is also the probability that we will release the wrong man. As Justice Antonin Scalia's dissenting opinion notes, at least 30 detainees released from Guantanamo Bay -- with the military, not the courts, making the call -- have returned to Afghanistan and Iraq battlefields.

The Boumediene majority has two hopes for getting away with its brazen power grab. It assumes that we have accepted judicial control over virtually every important policy in our society, from abortion and affirmative action to religion. Boumediene simply adds war to the list. The justices act like we are no longer really at war. Our homeland has not suffered another 9/11 attack for seven years, and our military and intelligence agencies have killed or captured much of al Qaeda's original leadership. What's left is on the run, due to the very terrorism policies under judicial attack.

Justice Kennedy and his majority assume that terrorism is some long-term social problem, like crime, so the standard methods of law enforcement can be used to deal with al Qaeda. Boumediene reflects a judicial desire to return to the comfortable, business-as-usual attitude that characterized U.S. antiterrorism policy up to Sept. 10, 2001.

The only real hope of returning the Supreme Court to its normal wartime role rests in the November elections. Sometimes it is difficult to tell Sens. Barack Obama and John McCain apart on issues like campaign finance or global warming. But they have real differences on Supreme Court appointments. Mr. Obama had nothing but praise for Boumediene, while Mr. McCain attacked it and promised to choose judges like Chief Justice Roberts and Justice Samuel Alito, both dissenters.

Because of the advancing age of several justices (Justice Stevens is 88, and several others are above 70), the next president will be in a position to appoint a new Court that can reverse the damage done to the nation's security.

John Yoo
The Wall Street Journal
June 17, 2008

-------------

Mr. Yoo is a law professor at the University of California, Berkeley and a visiting scholar at the American Enterprise Institute. He was an official in the Justice Department from 2001-03.

The Audacity of the Democrats -- Rocco DiPippo -- June 7, 2008

2008-06-09T12:16:00.002-05:00

There was a pre-Lewinsky time, before moral relativism blurred America's vision, when associating with people like Jeremiah Wright and William Ayers would have automatically excluded someone from attaining the highest office in the land. Back then, anyone with well known connections to such America-averse personalities would have been rejected by a super-majority of the electorate during primary season and almost certainly blocked by the Democratic Party before they could have gotten to within a mile of the White House. But those days -- when patriotic, true liberals like Joe Lieberman were considered typical Democratic Party politicians -- are gone. Now politicians like Lieberman are banished to the Party's periphery and leftists, not liberals, like Denis Kucinich, Bernie Sanders, Jim McDermott, John Kerry, (who served in Vietnam), Jim McGovern, Patrick Leahy, Richard Durbin, Hillary Clinton and Barack Obama have replaced them.

Until recently in our history, a President Barack Obama would have been an impossibility. But given the political and ideological climate that exists today in America, the ascension of a leftist like Barack Obama into presidential politics makes perfect sense. Beliefs like domestic terrorist William Ayers's and racist, anti-US preacher Jeremiah Wright's are no longer met with utter scorn or a trip to behind the woodshed, but are embraced, promoted and defended by many Americans. Think MoveOn, International ANSWER, think hordes of young neo-communists and their indoctrinating, puppet-master Marx-spouting professors. Think Michael Moore, Cindy Sheehan, Noam Chomsky, Ward Churchill and his acolytes. Think NYU, Columbia, The New School and Harvard. Most importantly, ponder the makeup and direction of the Democratic Party leadership. Like Barack Obama and his radical friends, it is appallingly far Left.

Ideological descendants of Marx and Rousseau now lead the Democratic Party and they have turned it into a disloyal opposition to an increasingly accommodating GOP. They have molded the Party into a force working stridently and unashamedly against a Commander in Chief during wartime. They have made it a den of treachery devoted to American defeat in Iraq. They preside over an institution advised and influenced by moneyed, non-governmental groups and individuals with unquestionably anti-US agendas who help make the Party a pseudo-intellectual sinkhole filled with perverse, tried-and-failed ideas repulsive to the majority of Americans. Those ideas are shaped into agendas which are then forced on the public by an activist leftwing judiciary and by a major media and arts consortium shot through with utter disrespect, indeed contempt, for traditional American values, religions and institutions.

The Democratic Party has devolved into a club for the illegitimately aggrieved, the self-absorbed, the self-hating and the perpetually pissed-off. It is a sanctuary where solipsistic malcontents and their disjointed causes find refuge and support. It has long ceased being an earnest gathering of broad minds where man's timeless problems are examined against the backdrop of the Constitution and solutions to them proposed based on the actual realities of the human condition. It is now the political province of the intellectually deceased, where frightened, lock-step ideologues and other small men and women concoct and promote divisive, destructive, weird and cowardly policies developed within a not-so-quaint, quasi-Marxist stricture of gender, class and race.

So what does all of that have to do with the propulsion of Barack Obama to within a whisker of the Presidency? Everything. It could not have happened without the existence of a substantial, organized, internal anti-US Left and the approval and guidance of the Democratic leadership I describe. Obama is in step with that radical element and with that leadership. His views reflect their views, and he is now a central figure in the deceptive, destructive strategy to restore the Democrats to power, a strategy that has been in play since the US Supreme Court declared Albert Gore the loser of the 2000 presidential contest. "Don't call me a liberal," says Obama. In a precise, lawyerly sort of way he is being honest - he truly isn't a liberal, but he is a leftist.

At a glance, Obama's quick rise in the world of presidential politics is puzzling. His background, including his personal and political associations, is antithetical to the historical stature of the American presidency. It could also be said that given his non-traditional upbringing, his schooling in radical politics and his seeming preference for friends and mentors who view America disdainfully, he is antithetical to the traditional American Experience itself. Obama is young and he has less than one Senate term under his belt. Neither quality is particularly presidential. Questions of patriotism dog him, as do questions about his religious and ethnic heritage. Many of the people who tutored and supported him through his personal and political journeys from the backwaters of Indonesia to the main stage of US presidential politics are contemptuous of the US. Some of them publicly express outright hatred of the country Obama now seeks to lead.

So why is so controversial a candidate even in the running to be president?

Because he reflects his Party's leftist agenda, has unique, prodigious manipulative talents and equally impressive Hollywood attributes. These are indispensable in closing out the dangerous, deliberate game the Democrats have been playing with America's security and its perceived stature in the world. It is a game that has been going on beneath our noses since the election of 2000. Its object is simple: the acquisition of power regardless of cost to the Nation. It is something the American people must be reminded of, made aware of, before they enter the voting booth in November.

A strategy of contention vs. the risk of irrelevance

The opening event setting the stage for Obama's ascension was the contentious 2000 election. When Bush was declared its winner, Democrats fumed that the election had been stolen by the Republicans. The promotion of that canard within leftwing and media circles and the personal quality of the resentment of Bush it provoked within the Democratic Party is important to mention, since a similar canard that morphed from it and became popularized -- "Bush Stole the Election," -- became the base justification for the future blizzard of untruths used to disparage the President. It also provided justification for the widespread disrespect and abuse President Bush endures to this day, disrespect that would be far more deserved if he had indeed illegally assumed power.

Less than a year after the 2000 election was finalized, September 11, 2001 arrived. In the baleful blink of a jihadist's eye, most of the issues that normally occupy the American polity in peaceful times were swept off the table. Issues that normally help Americans differentiate between the two major political parties and define those party's respective agendas -- health care, taxes, the environment, social programs and civil rights -- took a far-distant back seat to two far more pressing matters: Exacting justice for the 911 atrocities and protecting the homeland from additional attacks.

Since the American electorate historically views Republicans as being more competent and trustworthy than Democrats in matters of war and security, and since all other issues that Democrats could normally use to make political hay with had been blasted off the table by 911, the Party was facing the threat of irrelevance. There was another factor that did not bode well for the future political fortunes of the Democratic Party in the wake of the 911 attacks: George W. Bush had become an extraordinarily popular president.

Whatever patriotism was stoked within the hearts of Democratic Party leaders by that September Day of Infamy was likely tempered by an unsettling reality: If America stayed united behind George W. Bush and the Republicans during the coming military response to 911, the Democratic Party would be out of power for a long time.

As the wreckage of the Towers was being scoured for the remains of the murdered, the Democratic Party faced an extended stay in the political wilderness. It must have been an extraordinarily bitter pill to swallow, especially on the heels of its having lost the presidency by a tattered handful of contested votes. As things stood, Democrat prospects for winning it back anytime soon looked grim. Americans did not switch horses in the middle of a war -- unless they perceived a war to be headed towards defeat. This was especially true after the 911 attacks. The Democratic Party, with its conflict-averse, Vietnam-era mentality would be naturally unattractive to a war-time electorate seeking vengeance for the mass murder of its brothers and sisters. Pragmatically speaking, the only hope the Party had then, in terms of making inroads with post-911 American voters, rested on a single option: overlaying the US military response to 911 with a template -- the rhetoric, look and feel of the Vietnam debacle of years earlier, portraying those directing and supporting the war and those fighting it on the ground, as corrupt, inept and malevolent.

As the Democrats weighed their narrow, post-911 political options and saw a grim future, at least a few of them might have considered Jimmy Carter's triumph on the heels of Vietnam and Watergate, and felt a flicker of hope.

A Vietnam strategy develops

Soon after 911, as America shifted into a wartime footing, leftists in academia and in the Legal Left began testing the waters of dissent by deconstructing Bush and the Republicans and blaming American foreign policy for the 911 attacks. Several professors at major Universities openly proclaimed their wishes to see America defeated and disgraced. One of them, Professor Nicholas DeGenova of Columbia University, announced to those attending a ‘peace' conference at the school shortly after the 911 attacks that he "wished for a million Mogadishus," a reference to the loss of 18 US serviceman during a mission to capture a warlord in Somalia in 1997. DeGenova also said, "the only true heroes are those who find ways that help defeat the U.S. military," and referred to patriotism as a form of white supremacism adding that "My rejection of U.S. nationalism is an appeal to liberate our own political imaginations such that we might usher in a radically different world in which we will not remain the prisoners of U.S. global domination." Since DeGenova is an American collecting an excellent salary at a prestigious American university, it is puzzling who he meant by "we."

When the Democratic Party joined the academic Left's undermining of the Administration's military response to 911, a lethargic Republican public relations machine and inarticulate President were no match for the polish and reach of the influential leftwing media assisting the Democrats. Within months of 911 the Party and its media assistants began manufacturing anti-Bush, antiwar propaganda with impunity. Prominent leftwing intellectuals spoke openly of America's culpability in the 911 disaster even as the Towers still smoldered and the Nation wept, sowing seeds of doubt and divisiveness amongst a population that had been traumatized and then unified by the terrorist attacks. The press began chipping, then hammering away at the Administration's war policies and its domestic policies regarding security. When the debate on whether or not to invade Iraq came, there was no doubt which side of the discussion the press -- and most of the Democrats -- would be on.

Predictably, the historically anti-US, European socialist Left closed ranks with the Democrats and the academic Left. It also fell in line with the neo-communist-organized antiwar movement in America that was taking shape. With the first wave of antiwar street protests, the Democratic Party's mission to reacquire power lurched into high gear. That mission would be accomplished at the risk of weakening America's security and at the expense of her standing in the world.

Shortly after the US invaded Iraq, Party leaders and their friends in the media started kidney-punching America, pounding away at the wartime president, deriding his administrators and his policies, harping on and grossly magnifying each setback in Iraq.

On the home front, every Bush policy designed to protect America from further attacks was framed and presented by Democratic Party leaders and leftwing 527 groups as direct assaults on the US Constitution and as being destructive to the Bill of Rights. The press followed the Party's antagonistic lead, flooding the news with disproportionate coverage of subjects like Abu Ghraib, Haditha, US so-called torture and rendition; so-called domestic spying; the so-called rights of terrorists in Guantanamo; the so-called evils of the Patriot Act; the so-called lies of George W. Bush; the so-called warmongering of Dick Cheney and the so-called greed and evil of defense-related corporations like Halliburton.

The effect was to frame isolated incidents of US atrocities and other malfeasances that occur in any war as emblematic of the entire Iraq enterprise. A narrative of an administration hell-bent on imperialistic conquest, spying on Americans and shredding the Constitution concretized within most American and international newsrooms. And who can forget the endemic, Left-generated conflation of the Bush Administration with the Nazis and the invention and promotion of theories that Bush and Cheney planned and directed the attacks of 911 to advance a secret desire of turning America into a fascist state. Those theories were boosted by prominent leftists, including respected author Gore Vidal, who wrote a book promoting such a theory. The collective message of the anti-Bush noise machine was clear and diabolical: The President of the United States was a bigger threat to world peace than men like Osama Bin Laden were. Bush was more evil than Adolf Hitler.

The withering attacks on the Bush Administration took their toll. Bush was slowly becoming a pariah, even within his own political party. His approval ratings, burdened by the vicious attacks on his character and constant attacks on his war policies, sank like a stone.

By the 2004 election, the Democrats' strategy of throwing everything but the kitchen sink at Bush was poised to render results. But a lackluster campaign by a wooden candidate, John Kerry, and serious attacks on Kerry's credibility and patriotism by 250 decorated war veterans caused the Party's presidential effort to fail, but just barely.

In spite of that loss, or perhaps buoyed by the closeness of it, the Democrat assault on America's President and on America's war-time morale intensified as the 2006 congressional elections approached. Efforts to stabilize a post-Saddam Iraq were sputtering and support for Bush and Republican politicians sagged in direct proportion to every real, over-reported and media invented setback there.

It is common knowledge, supported by history, that war is fraught with uncertainties and surprises that cannot always be planned in advance for. It is the side in a conflict that best adapts and adjusts in response to those vagaries that usually wins. The slaughter of 5,000 US soldiers at Omaha beach in a single day during WWII was not trumpeted by the US media to America and to the world as evidence of imminent US defeat against the Nazis, nor did US politicians of that era cry for withdrawal from the larger battle when disasters like Omaha Beach and Corregidor happened. They did not publicize enemy successes during the vicious battles of Guadalcanal nor did they pronounce defeat whenever Americans suffered setbacks while fighting the fanatical Japanese. But throughout every phase of the Iraq and Afghanistan conflicts nearly every negative event, every disaster or perceived disaster, exploded across the front pages of the major US papers and was broadcast by Democrats from the halls of Congress as evidence of Bush's malevolence, stupidity or incompetence and as evidence of impending American defeat. Michael Yon, the Iraq conflict's Ernie Pyle, best sums up the result of that grinding media assault on the Iraq War and its American leaders:

"Enemy dominance of the media battle space translated quite directly into military setbacks. Terrorists from many countries swarmed into Iraq to be part of the victory they saw happening on the TV screens."

Deliberately or not, the Democratic Party and the leftwing media, with their endless criticisms of the Iraq conflict, and their endless public comparisons of that war to Vietnam, sent a direct message to the rag-tag army of ultra-violent terrorists in Iraq who were detonating car bombs in crowded marketplaces, beheading and mutilating civilians and killing American and Coalition soldiers: "Keep the violence up just a bit longer. We'll take care of wearing down America's will to win from within, just like during Vietnam."

Even violent, under-equipped sociopaths facing the most powerful military on earth know a gift horse when they see one, and react accordingly.

On the other hand, nearly every bit of positive war news was whispered in quiet sentences or totally ignored. Today, with the Iraq venture steadily closing in on success, the amount of news about Iraq has slowed to barely a drip. That is quite telling.

Under the deliberate, massive media barrage of negative news about the war and hampered by a lack of coherent strategy with which to counter it, Republican prospects for the retention of Congressional majorities in 2006 looked shaky at best. Then the Congressman Larry Craig sex scandal broke and the Republican majorities in the House and Senate were lost.

In less than five years, the Democratic Party had gone from being an increasingly irrelevant political minority to controlling both houses of Congress.

A Strategy Emboldened

Buoyed by the 2006 election success of their Vietnam-era strategy, Democrat leaders and other leftists began openly calling Iraq an ‘unjust' war, an "unwinnable" war and relying on the short memories of most Americans to hide the fact that many prominent Democrats had actually voted to authorize it. Jesse Macbeth, Jimmy Massey, Scott Beauchamp and other antiwar frauds who admitted faking tales of atrocities committed by US soldiers were praised by the press and the Democrats as heroic dissenters against the evil Bush war machine, their false tales of butchery and bloodlust spread far and wide. Widespread, positive coverage was given to antiwar, anti-American, pro-terrorist activists like Cindy Sheehan, who was sanctimoniously christened America's "Peace Mom" by leading Democrats and the leftwing media, while true American heroes, patriots like Paul R. Smith and Jason L. Dunham, both Medal of Honor winners, both killed in the act of protecting America from her enemies, received virtual media silence for their heroism and sacrifice and little public acknowledgment from Democrat politicians.

The press and the Democrats did however publicly acknowledge American soldiers when they were killed, when they spun tales of atrocities, when they groused or when they returned home and fell through the cracks. They wanted Americans to be ashamed of their soldiers, to be ashamed of the Commander-in-Chief, to be ashamed of America itself. They needed America on its knees -- disillusioned, angry at its leaders and their policies -- hopeless, sick of hearing about the war and demoralized because then, out of desperation, they would naturally look to Democratic politicians for relief.

The technique of creating discontent and "talking all things Bush down" paid big dividends for the Democrats in 2006. Devoid of credible ideas and solutions, they had nevertheless worked a strategy leading to the re-acquisition of at least some of the political power they had lost during their wilderness years after the Reagan Revolution. The 2006 election confirmed the effectiveness of their "destroy Bush" election strategy. And so the Democratic Party's attacks on Bush and the Republicans increased to a ferocious level, even as Iraq turned a corner towards security and political stability.

When to the Party's dismay the Bush troop surge took hold and the situation in Iraq began improving, the Democrats' defeatist rhetoric reached a desperate, farcical crescendo: "The war is lost," (even though objective measurements indicated that it was being won) crowed many Democrats, including prominent ones like Harry Reid, Nancy Pelosi, John Murtha, Edward Kennedy, John Kerry and Barack Obama. Prominent Democrat John Murtha publicly tried and convicted US Marines involved in the Haditha incident before those Marines even went to trial. "Bush lied us into war" became the catch-phrase of almost the entire Democratic Party leadership, even though before the war had commenced many of those same Democrats had access to the same information that the Bush Administration used to justify it.

Power at any cost indeed, even at the defeat and humiliation of one's own country.

***

Now the 2008 election is upon us. Whether it is Iraq or Afghanistan, the economy or the overblown dangers of anthropogenic global warming, the Democratic Party and its media shills continue crafting and pounding home messages telling us that our national problems, real and imagined, are caused by Bush and the Republicans, They tell us that due to Bush and his policies, our nation is an evil one, our nation is hated by the world, our nation is fractured into pieces, our nation is murdering innocents, our nation is the world's biggest polluter, our nation is a den of racism, our nation is stingy, our citizens are impoverished, our economy has been destroyed. Collectively, this endless stream of buckshot propaganda adds up to a single, powerful and demoralizing statement: America has come apart at the seams - and George W. Bush and the Republicans are to blame for it.

Though the Democrats and their media shills are responsible for creating that illusion, Bush and the Republicans are to blame for generally ignoring or responding weakly to the Left's relentless assault on America's war-time morale. Instead of using the power of the White House pulpit to broadcast a steady, convincing message on the importance of presenting a unified national front in the face of totalitarian Islam, America is instead often treated to incongruous platitudes like, "Islam is a religion of peace." Instead of a forceful, direct calling-out of the Democratic Party, the State Department and CIA on their numerous subversions of Bush policies, those subversions are usually referred to by the White House as "disagreements."

Because of the Administration's seeming refusal to conduct investigations leading to the indictment of those leaking classified security information to the press, and thereby to the enemy, the Democrat-leftwing press consortium has been given implied consent to inundate America with torrents of articles and highly publicized tell-all books from former government officials, some revealing sensitive war-time information, most of them highly critical of America's Commander-in-Chief -- all published while American soldiers and civilians were, (and are), on the ground in combat areas, directly in harm's way.

With the exception of the Vietnam War, never before in America's history have such things happened while hostilities were ongoing. And what happened during Vietnam was tame in comparison. Worst of all, due to the subversive Democrat-media barrage, and crippled by its public relations ineptness, Bush and the Republicans could never quite convince the American people of a simple reality: that they are all in the fight of their lives against an implacable, dedicated, totalitarian death cult, one seeking nothing less than America's utter destruction, and that the fight demands focus and sacrifice from all Americans. Instead of rousing, convincing, patriotic speeches, the public was usually treated to lame utterances from Bush like, "Its hard work . . . we're working hard . . . we're making progress."

The end result of the inability of Bush and his PR team to own and promote the Big Ideas necessary to have focused America on the prize of victory in Iraq and on a greater victory over the worldwide forces of totalitarian Islam, is best summed up by three, short sentences written on a whiteboard in a US Marines barracks:

America is not at war.

The Marine Corp is at war.

America is at the mall.

***

It is no wonder the American electorate has slipped into a foul mood -- little wonder why it seems that its heart is not in the fight against the totalitarian theocrats who threaten it. For seven years Americans have been pounded with messages that their country and its leaders are unjust, warmongering, and evil and hated by all -- it deserves whatever evil it gets.

America now has serious doubts about itself. Its citizens have been pummeled with those terrible messages for so long now, that many of them believe them to be true. They are vulnerable to the Democratic Party's sudden mantra of Hope and Change and Progress. In a nutshell, here are the mechanics of the crude, hate-based initiative the Democratic Party and its media wing have forced on America since 2001:

1) Invent, inflate, and over-report bad war news. Tie all bad news to Bush and/or Republicans. At the same time, ignore or downplay good news as it relates to Bush, the Republicans or the war(s).

2) Create the illusion of widespread, honest dissent to Bush policies by giving plenty of airtime to leftwing groups and individuals historically antagonistic toward the projection of US, and only US, power. Fail to report the true agendas of those groups -- when covering antiwar, anti-Bush protests and events, make sure to meticulously portray antiwar marches as spontaneous gatherings of mainstream, mom and pop Americans.

3) Downplay, ignore and disparage American success wherever you find it.

4) Exalt in, sympathize with and mythologize America's enemies, vilify and deconstruct its protectors.

5) Downplay America's generosity and righteousness. Recast a mission that includes saving a nation from a murdering brute and his rapist, sociopath sons as a brutal occupation in the pursuit of American Empire.

6) Fill the Nation's airwaves, from sea to shining sea, with questionable and sometimes outright false tales of Bush-related misery, butchery, fraud and waste.

7) Foment as much national anxiety and hatred of the Republican leader as money and can buy. George Soros and other moneyed leftists will fund you. Give airtime and print coverage to leftist radicals and Democrats who call Bush a war criminal. Present those radicals and their crazy plans to try President Bush and Vice President Cheney for "war crimes" as worthy of consideration.

8) Provide coverage to leftwing intellectuals and scientists making anti-Bush statements. Present them as legitimate, non-partisan experts in their fields. Publicize their specious, politicized findings, present those findings as non-partisan, accurate and objective.

9) Present major news coverage of every antiwar protest you can find, whether it draws 100 people or 10,000 people, ignore all pro-US, pro-Iraq War, pro-troop rallies completely or portray their attendees as violence-prone, fringe-lunatic jingoists.

10) Blame a hurricane's aftermath on Bush. Give news coverage to racists and Democrat crackpots who say Bush and Cheney actually caused the hurricane and blew up levees to kill African Americans. Keep that Bush-hate buzz alive at all costs.

11) Give airtime and print coverage to groups and individuals accusing George W. Bush of having engineered and directed the 911 attacks. Remember, it is not the credibility of accusations that count in shaping public opinion now, but the seriousness and sheer volume of accusations that do.

12) To sow further strife, anxiety and confusion, continue stoking the fires of racial tension and class warfare.

13) Once the onslaught of lies, moral relativisms and crazy notions have created a self-sustaining, luciferous, widespread unhappiness and confusion, dangle a fat bait of silence and tranquility -- of Hope, Change and Progress -- crowning your deceptive achievement by hooking the same fish you made hungry.

That is the immoral, destructive strategy used by the Democratic Party, even as our soldier sons and daughters have been fighting and sometimes dying to protect us, in the years since 911 to recapture power it unjustly covets as its Divine right.

Now, a master psychological fisherman, Barack Obama, dangles a bait of salvation. As a highly experienced practitioner of Saul Alinsky's radical arts, he is perfect for the job. Those who know Obama well, like Mike Kruglik, who helped train him in Alinsky's methods would agree:

"He [Obama] was a natural, the undisputed master of agitation. . . As with the panhandler, he could be aggressive and confrontational. With probing, sometimes personal questions, he would pinpoint the source of pain in their lives, tearing down their egos just enough before dangling a carrot of hope that they could make things better."

It is truly audacious of the Democrats to entice us with their slick-tongued messiah, one who appears out of nowhere and graciously offers to scrape clean and sanitize the same plate of defeat he, his party and their assistants in the media served to America for nearly eight years in the middle of a war. Soon we will see if a majority of the American electorate accepts that offer, or if it rejects it, sending the Democratic Party back to confront the same irrelevance it risked the safety and security of our nation to avoid.

________________________________________________________
Originally Published at AmericanThinker.com -- June 7, 2008

"Use of Force" Resolution -- September 14, 2001

2008-05-27T10:17:00.007-05:00

Authorizing the President George W. Bush to seek out and respond to those nations or persons who were directly or indirectly responsible for the attacks on 9.11
_____________________________________________________________________________________

SJ 23 ES

107th CONGRESS

1st Session

S. J. RES. 23

_____________________________________________________________________________________

JOINT RESOLUTION

To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it

          Resolved by the Senate and House of Representatives of the
          United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

          This joint resolution may be cited as the `Authorization for
          Use of Military Force'.

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

          (a) IN GENERAL- That the President is authorized to use
          all necessary and appropriate force against those nations,
          organizations, or persons he determines planned, authorized,
          committed, or aided the terrorist attacks that occurred on
          September 11, 2001, or harbored such organizations or
          persons, in order to prevent any future acts of international
          terrorism against the United States by such nations,
          organizations or persons.

          (b) War Powers Resolution Requirements-

                    (1) SPECIFIC STATUTORY AUTHORIZATION-
                    Consistent with section 8(a)(1) of the War Powers
                    Resolution, the Congress declares that this section is
                    intended to constitute specific statutory authorization
                    within the meaning of section 5(b) of the War Powers
                    Resolution.

                    (2) APPLICABILITY OF OTHER REQUIREMENTS-
                    Nothing in this resolution supercedes any requirement
                    of the War Powers Resolution.

Passed the Senate September 14, 2001.

Attest:

Secretary.

107th CONGRESS

1st Session

S. J. RES. 23

JOINT RESOLUTION

To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

An American Soldier: "Why I Joined" -- Sunday, October 29, 2006

2007-12-24T15:52:00.000-06:00

Current mood: optimistic

Why I Joined:

This question has been asked of me so many times in so many different contexts that I thought it would be best if I wrote my reasons for joining the Army on my page for all to see. First, the more accurate question is why I volunteered to go to Iraq. After all, I joined the Army a week after we declared war on Saddam’s government with the intention of going to Iraq. Now, after years of training and preparation, I am finally here.

Much has changed in the last three years. The criminal Ba’ath regime has been replaced by an insurgency fueled by Iraq’s neighbors who hope to partition Iraq for their own ends. This is coupled with the ever present transnational militant Islamist movement which has seized upon Iraq as the greatest way to kill Americans, along with anyone else they happen to be standing near. What was once a paralyzed state of fear is now the staging ground for one of the largest transformations of power and ideology the Middle East has experienced since the collapse of the Ottoman Empire. Thanks to Iran, Syria, and other enlightened local actors, this transformation will be plagued by interregional hatred and genocide. And I am now in the center of this.

Is this why I joined?

Yes. Much has been said about America’s intentions in overthrowing Saddam Hussein and seeking to establish a new state based upon political representation and individual rights. Many have framed the paradigm through which they view the conflict around one-word explanations such as “oil” or “terrorism,” favoring the one which best serves their political persuasion. I did the same thing, and anyone who knew me before I joined knows that I am quite aware and at times sympathetic to the arguments against the war in Iraq. If you think the only way a person could bring themselves to volunteer for this war is through sheer desperation or blind obedience then consider me the exception (though there are countless like me).

I joined the fight because it occurred to me that many modern day “humanists” who claim to possess a genuine concern for human beings throughout the world are in fact quite content to allow their fellow “global citizens” to suffer under the most hideous state apparatuses and conditions. Their excuses used to be my excuses. When asked why we shouldn’t confront the Ba’ath party, the Taliban or the various other tyrannies throughout this world, my answers would allude to vague notions of cultural tolerance (forcing women to wear a veil and stay indoors is such a quaint cultural tradition), the sanctity of national sovereignty (how eager we internationalists are to throw up borders to defend dictatorships!) or even a creeping suspicion of America’s intentions. When all else failed, I would retreat to my fragile moral ecosystem that years of living in peace and liberty had provided me. I would write off war because civilian casualties were guaranteed, or temporary alliances with illiberal forces would be made, or tank fuel was toxic for the environment. My fellow “humanists” and I would relish contently in our self righteous declaration of opposition against all military campaigns against dictatorships, congratulating one another for refusing to taint that aforementioned fragile moral ecosystem that many still cradle with all the revolutionary tenacity of the members of Rage Against the Machine and Greenday. Others would point to America’s historical support of Saddam Hussein, sighting it as hypocritical that we would now vilify him as a thug and a tyrant. Upon explaining that we did so to ward off the fiercely Islamist Iran, which was correctly identified as the greater threat at the time, eyes are rolled and hypocrisy is declared. Forgetting that America sided with Stalin to defeat Hitler, who was promptly confronted once the Nazis were destroyed, America’s initial engagement with Saddam and other regional actors is identified as the ultimate argument against America’s moral crusade.

And maybe it is. Maybe the reality of politics makes all political action inherently crude and immoral. Or maybe it is these adventures in philosophical masturbation that prevent people from ever taking any kind of effective action against men like Saddam Hussein. One thing is for certain, as disagreeable or as confusing as my decision to enter the fray may be, consider what peace vigils against genocide have accomplished lately. Consider that there are 19 year old soldiers from the Midwest who have never touched a college campus or a protest who have done more to uphold the universal legitimacy of representative government and individual rights by placing themselves between Iraqi voting lines and homicidal religious fanatics. Often times it is less about how clean your actions are and more about how pure your intentions are.

So that is why I joined. In the time it took for you to read this explanation, innocent people your age have suffered under the crushing misery of tyranny. Every tool of philosophical advancement and communication that we use to develop our opinions about this war are denied to countless human beings on this planet, many of whom live under the regimes that have, in my opinion, been legitimately targeted for destruction. Some have allowed their resentment of the President to stir silent applause for setbacks in Iraq. Others have ironically decried the war because it has tied up our forces and prevented them from confronting criminal regimes in Sudan, Uganda, and elsewhere.

I simply decided that the time for candid discussions of the oppressed was over, and I joined.

In digesting this posting, please remember that America’s commitment to overthrow Saddam Hussein and his sons existed before the current administration and would exist into our future children’s lives had we not acted. Please remember that the problems that plague Iraq today were set in motion centuries ago and were up until now held back by the most cruel of cages. Don’t forget that human beings have a responsibility to one another and that Americans will always have a responsibility to the oppressed. Don’t overlook the obvious reasons to disagree with the war but don’t cheapen the moral aspects either. Assisting a formerly oppressed population in converting their torn society into a plural, democratic one is dangerous and difficult business, especially when being attacked and sabotaged from literally every direction. So if you have anything to say to me at the end of this reading, let it at least include “Good Luck”

--Army 2nd Lt. Mark J. Daily

----

Daily was killed in Action on Monday, January 15, 2007
when a bomb ripped through his military
vehicle in the northern Iraqi city of Mosul.

Vice President Spiro Agnew: Censorship Already Exists -- November 13, 1969

2007-12-14T21:13:00.000-06:00

I think it's obvious from the cameras here that I didn't come to discuss the ban on cyclamates or DDT. I have a subject which I think if of great importance to the American people. Tonight I want to discuss the importance of the television news medium to the American people. No nation depends more on the intelligent judgment of its citizens. No medium has a more profound influence over public opinion. Nowhere in our system are there fewer checks on vast power. So, nowhere should there be more conscientious responsibility exercised than by the news media. The question is, "Are we demanding enough of our television news presentations?" "And are the men of this medium demanding enough of themselves?"

Monday night a week ago, President Nixon delivered the most important address of his Administration, one of the most important of our decade. His subject was Vietnam. My hope, as his at that time, was to rally the American people to see the conflict through to a lasting and just peace in the Pacific. For 32 minutes, he reasoned with a nation that has suffered almost a third of a million casualties in the longest war in its history.

When the President completed his address -- an address, incidentally, that he spent weeks in the preparation of -- his words and policies were subjected to instant analysis and querulous criticism. The audience of 70 million Americans gathered to hear the President of the United States was inherited by a small band of network commentators and self-appointed analysts, the majority of whom expressed in one way or another their hostility to what he had to say.

It was obvious that their minds were made up in advance. Those who recall the fumbling and groping that followed President Johnson’s dramatic disclosure of his intention not to seek another term have seen these men in a genuine state of nonpreparedness. This was not it.

One commentator twice contradicted the President’s statement about the exchange of correspondence with Ho Chi Minh. Another challenged the President’s abilities as a politician. A third asserted that the President was following a Pentagon line. Others, by the expressions on their faces, the tone of their questions, and the sarcasm of their responses, made clear their sharp disapproval.

To guarantee in advance that the President’s plea for national unity would be challenged, one network trotted out Averell Harriman for the occasion. Throughout the President's address, he waited in the wings. When the President concluded, Mr. Harriman recited perfectly. He attacked the Thieu Government as unrepresentative; he criticized the President’s speech for various deficiencies; he twice issued a call to the Senate Foreign Relations Committee to debate Vietnam once again; he stated his belief that the Vietcong or North Vietnamese did not really want military take-over of South Vietnam; and he told a little anecdote about a “very, very responsible” fellow he had met in the North Vietnamese delegation.

All in all, Mr. Harrison offered a broad range of gratuitous advice challenging and contradicting the policies outlined by the President of the United States. Where the President had issued a call for unity, Mr. Harriman was encouraging the country not to listen to him.

A word about Mr. Harriman. For 10 months he was America’s chief negotiator at the Paris peace talks -- a period in which the United States swapped some of the greatest military concessions in the history of warfare for an enemy agreement on the shape of the bargaining table. Like Coleridge’s Ancient Mariner, Mr. Harriman seems to be under some heavy compulsion to justify his failures to anyone who will listen. And the networks have shown themselves willing to give him all the air time he desires.

Now every American has a right to disagree with the President of the United States and to express publicly that disagreement. But the President of the United States has a right to communicate directly with the people who elected him, and the people of this country have the right to make up their own minds and form their own opinions about a Presidential address without having a President’s words and thoughts characterized through the prejudices of hostile critics before they can even be digested.

When Winston Churchill rallied public opinion to stay the course against Hitler’s Germany, he didn’t have to contend with a gaggle of commentators raising doubts about whether he was reading public opinion right, or whether Britain had the stamina to see the war through. When President Kennedy rallied the nation in the Cuban missile crisis, his address to the people was not chewed over by a roundtable of critics who disparaged the course of action he’d asked America to follow.

The purpose of my remarks tonight is to focus your attention on this little group of men who not only enjoy a right of instant rebuttal to every Presidential address, but, more importantly, wield a free hand in selecting, presenting, and interpreting the great issues in our nation. First, let’s define that power.

At least 40 million Americans every night, it’s estimated, watch the network news. Seven million of them view A.B.C., the remainder being divided between N.B.C. and C.B.S. According to Harris polls and other studies, for millions of Americans the networks are the sole source of national and world news. In Will Roger’s observation, what you knew was what you read in the newspaper. Today for growing millions of Americans, it’s what they see and hear on their television sets.

Now how is this network news determined? A small group of men, numbering perhaps no more than a dozen anchormen, commentators, and executive producers, settle upon the 20 minutes or so of film and commentary that’s to reach the public. This selection is made from the 90 to 180 minutes that may be available. Their powers of choice are broad.

They decide what 40 to 50 million Americans will learn of the day’s events in the nation and in the world. We cannot measure this power and influence by the traditional democratic standards, for these men can create national issues overnight. They can make or break by their coverage and commentary a moratorium on the war. They can elevate men from obscurity to national prominence within a week. They can reward some politicians with national exposure and ignore others.

For millions of Americans the network reporter who covers a continuing issue -- like the ABM or civil rights -- becomes, in effect, the presiding judge in a national trial by jury.

It must be recognized that the networks have made important contributions to the national knowledge -- through news, documentaries, and specials. They have often used their power constructively and creatively to awaken the public conscience to critical problems. The networks made hunger and black lung disease national issues overnight. The TV networks have done what no other medium could have done in terms of dramatizing the horrors of war. The networks have tackled our most difficult social problems with a directness and an immediacy that’s the gift of their medium. They focus the nation’s attention on its environmental abuses -- on pollution in the Great Lakes and the threatened ecology of the Everglades. But it was also the networks that elevated Stokely Carmichael and George Lincoln Rockwell from obscurity to national prominence.

Nor is their power confined to the substantive. A raised eyebrow, an inflection of the voice, a caustic remark dropped in the middle of a broadcast can raise doubts in a million minds about the veracity of a public official or the wisdom of a Government policy. One Federal Communications Commissioner considers the powers of the networks equal to that of local, state, and Federal Governments all combined. Certainly it represents a concentration of power over American public opinion unknown in history.

Now what do Americans know of the men who wield this power? Of the men who produce and direct the network news, the nation knows practically nothing. Of the commentators, most Americans know little other than that they reflect an urbane and assured presence seemingly well-informed on every important matter. We do know that to a man these commentators and producers live and work in the geographical and intellectual confines of Washington, D.C., or New York City, the latter of which James Reston terms the most unrepresentative community in the entire United States.

Both communities bask in their own provincialism, their own parochialism.

We can deduce that these men read the same newspapers. They draw their political and social views from the same sources. Worse, they talk constantly to one another, thereby providing artificial reinforcement to their shared viewpoints. Do they allow their biases to influence the selection and presentation of the news? David Brinkley states objectivity is impossible to normal human behavior. Rather, he says, we should strive for fairness.

Another anchorman on a network news show contends, and I quote: “You can’t expunge all your private convictions just because you sit in a seat like this and a camera starts to stare at you. I think your program has to reflect what your basic feelings are. I’ll plead guilty to that.”

Less than a week before the 1968 election, this same commentator charged that President Nixon’s campaign commitments were no more durable than campaign balloons. He claimed that, were it not for the fear of hostile reaction, Richard Nixon would be giving into, and I quote him exactly, “his natural instinct to smash the enemy with a club or go after him with a meat axe.”

Had this slander been made by one political candidate about another, it would have been dismissed by most commentators as a partisan attack. But this attack emanated from the privileged sanctuary of a network studio and therefore had the apparent dignity of an objective statement. The American people would rightly not tolerate this concentration of power in Government. Is it not fair and relevant to question its concentration in the hands of a tiny, enclosed fraternity of privileged men elected by no one and enjoying a monopoly sanctioned and licensed by Government?

The views of the majority of this fraternity do not -- and I repeat, not -- represent the views of America. That is why such a great gulf existed between how the nation received the President’s address and how the networks reviewed it. Not only did the country receive the President’s speech more warmly than the networks, but so also did the Congress of the United States.

Yesterday, the President was notified that 300 individual Congressmen and 50 Senators of both parties had endorsed his efforts for peace. As with other American institutions, perhaps it is time that the networks were made more responsive to the views of the nation and more responsible to the people they serve.

Now I want to make myself perfectly clear. I’m not asking for Government censorship or any other kind of censorship. I am asking whether a form of censorship already exists when the news that 40 million Americans receive each night is determined by a handful of men responsible only to their corporate employers and is filtered through a handful of commentators who admit to their own set of biases.

The question I’m raising here tonight should have been raised by others long ago. They should have been raised by those Americans who have traditionally considered the preservation of freedom of speech and freedom of the press their special provinces of responsibility. They should have been raised by those Americans who share the view of the late Justice Learned Hand that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. Advocates for the networks have claimed a First Amendment right to the same unlimited freedoms held by the great newspapers of America.

But the situations are not identical. Where The New York Times reaches 800,000 people, N.B.C. reaches 20 times that number on its evening news. [The average weekday circulation of the Times in October was 1,012,367; the average Sunday circulation was 1,523,558.] Nor can the tremendous impact of seeing television film and hearing commentary be compared with reading the printed page.

A decade ago, before the network news acquired such dominance over public opinion, Walter Lippman spoke to the issue. He said there’s an essential and radical difference between television and printing. The three or four competing television stations control virtually all that can be received over the air by ordinary television sets. But besides the mass circulation dailies, there are weeklies, monthlies, out-of-town newspapers and books. If a man doesn’t like his newspaper, he can read another from out of town or wait for a weekly news magazine. It’s not ideal, but it’s infinitely better than the situation in television.

There, if a man doesn’t like what the networks are showing, all he can do is turn them off and listen to a phonograph. "Networks," he stated "which are few in number have a virtual monopoly of a whole media of communications." The newspaper of mass circulation have no monopoly on the medium of print.

Now a virtual monopoly of a whole medium of communication is not something that democratic people should blindly ignore. And we are not going to cut off our television sets and listen to the phonograph just because the airways belong to the networks. They don’t. They belong to the people. As Justice Byron wrote in his landmark opinion six months ago, "It’s the right of the viewers and listeners, not the right of the broadcasters, which is paramount."

Now it’s argued that this power presents no danger in the hands of those who have used it responsibly. But as to whether or not the networks have abused the power they enjoy, let us call as our first witness, former Vice President Humphrey and the city of Chicago. According to Theodore White, television’s intercutting of the film from the streets of Chicago with the "current proceedings on the floor of the convention created the most striking and false political picture of 1968 -- the nomination of a man for the American Presidency by the brutality and violence of merciless police."

If we are to believe a recent report of the House of Representative Commerce Committee, then television’s presentation of the violence in the streets worked an injustice on the reputation of the Chicago police. According to the committee findings, one network in particular presented, and I quote, “a one-sided picture which in large measure exonerates the demonstrators and protestors.” Film of provocations of police that was available never saw the light of day, while the film of a police response which the protestors provoked was shown to millions.

Another network showed virtually the same scene of violence from three separate angles without making clear it was the same scene. And, while the full report is reticent in drawing conclusions, it is not a document to inspire confidence in the fairness of the network news. Our knowledge of the impact of network news on the national mind is far from complete, but some early returns are available. Again, we have enough information to raise serious questions about its effect on a democratic society.

Several years ago Fred Friendly, one of the pioneers of network news, wrote that its missing ingredients were conviction, controversy, and a point of view. The networks have compensated with a vengeance.

And in the networks' endless pursuit of controversy, we should ask: What is the end value -- to enlighten or to profit? What is the end result -- to inform or to confuse? How does the ongoing exploration for more action, more excitement, more drama serve our national search for internal peace and stability?

Gresham’s Law seems to be operating in the network news. Bad news drives out good news. The irrational is more controversial than the rational. Concurrence can no longer compete with dissent. One minute of Eldrige Cleaver is worth 10 minutes of Roy Wilkins. The labor crisis settled at the negotiating table is nothing compared to the confrontation that results in a strike -- or better yet, violence along the picket lines. Normality has become the nemesis of the network news.

Now the upshot of all this controversy is that a narrow and distorted picture of America often emerges from the televised news. A single, dramatic piece of the mosaic becomes in the minds of millions the entire picture. The American who relies upon television for his news might conclude that the majority of American students are embittered radicals; that the majority of black Americans feel no regard for their country; that violence and lawlessness are the rule rather than the exception on the American campus.

We know that none of these conclusions is true.

Perhaps the place to start looking for a credibility gap is not in the offices of the Government in Washington but in the studios of the networks in New York! Television may have destroyed the old stereotypes, but has it not created new ones in their places? What has this "passionate" pursuit of controversy done to the politics of progress through logical compromise essential to the functioning of a democratic society?

The members of Congress or the Senate who follow their principles and philosophy quietly in a spirit of compromise are unknown to many Americans, while the loudest and most extreme dissenters on every issue are known to every man in the street. How many marches and demonstrations would we have if the marchers did not know that the ever-faithful TV cameras would be there to record their antics for the next news show?

We’ve heard demands that Senators and Congressmen and judges make known all their financial connections so that the public will know who and what influences their decisions and their votes. Strong arguments can be made for that view. But when a single commentator or producer, night after night, determines for millions of people how much of each side of a great issue they are going to see and hear, should he not first disclose his personal views on the issue as well?

In this search for excitement and controversy, has more than equal time gone to the minority of Americans who specialize in attacking the United States -- its institutions and its citizens?

Tonight I’ve raised questions. I’ve made no attempt to suggest the answers. The answers must come from the media men. They are challenged to turn their critical powers on themselves, to direct their energy, their talent, and their conviction toward improving the quality and objectivity of news presentation. They are challenged to structure their own civic ethics to relate to the great responsibilities they hold.

And the people of America are challenged, too -- challenged to press for responsible news presentation. The people can let the networks know that they want their news straight and objective. The people can register their complaints on bias through mail to the networks and phone calls to local stations. This is one case where the people must defend themselves, where the citizen, not the Government, must be the reformer; where the consumer can be the most effective crusader.

By way of conclusion, let me say that every elected leader in the United States depends on these men of the media. Whether what I’ve said to you tonight will be heard and seen at all by the nation is not my decision, it’s not your decision, it’s their decision. In tomorrow’s edition of the Des Moines Register, you’ll be able to read a news story detailing what I’ve said tonight. Editorial comment will be reserved for the editorial page, where it belongs. Should not the same wall of separation exist between news and comment on the nation’s networks?

Now, my friends, we’d never trust such power, as I’ve described, over public opinion in the hands of an elected Government. It’s time we questioned it in the hands of a small unelected elite. The great networks have dominated America’s airwaves for decades. The people are entitled a full accounting their stewardship.

November 13, 1969
Des Moines, Iowa