

Dear Fellow Virginians and fans of first principles,Cuccinelli's web site is here.
The healthcare hearing on October 18th ... was to argue the constitutionality of the individual mandate. It's called a 'summary judgment' hearing, because the judge is going to rule without a trial. The reason for this is that the facts of the case are not in dispute, the only thing to determine is how the law applies to those facts - in this case, the 'law' is the constitution itself.
The two basic facts of the case are the existence of the federal healthcare law and the existence of Virginia's Healthcare Freedom Act (VHFA). These two laws are in direct conflict with one another, because the VHFA says that no Virginian can be ordered to purchase health insurance against his will. This conflicts with the federal healthcare law's mandate that all qualifying Americans must purchase government-approved health insurance.
Normally, under Article VI of the U.S. Constitution - a.k.a. the supremacy clause - a federal law in conflict with a state law would trump that state law. However, the exception to the supremacy clause is when the federal law is unconstitutional, and in this case Virginia is arguing that the federal healthcare law is in fact unconstitutional. So, if we win, at least the individual mandate and all of the insurance components in the federal healthcare law ("the federal law") will fall and the VHFA will stand.
Prior to October 18th, both sides filed approximately 100 pages of briefing. Additionally, there were a large number of amicus briefs filed by third parties (an amicus is a "friend of the court"). The amicus briefs heavily favored our side and were very high quality contributions to the legal discussion. Interestingly, despite the pounding we've taken from the academic world, we had 15 law professors supporting our position to only 3 for the federal government.
The hearing lasted a bit over two-and-a-half hours and featured what lawyers would call a "hot bench." That means the judge was engaged and asking lots of aggressive questions. He was clearly very well prepared and he challenged both sides on their legal theories.
I will point out a few things that happened during the hearing that are funny (to me anyway...) or that show how this administration approaches this case.
Introductions and Federalism
First, as soon as the lawyer for the federal government got up, he introduced himself: "Good morning your honor. Ian Gershengorn for the government, err...., I mean the federal government..."
What's peculiar about this? I suspect that Mr. Gershengorn has never in his life faced off against a government before; however, that's exactly what was happening in that courtroom. The federal government was defending itself against the legal assault of the government of the Commonwealth of Virginia.
Remember that one of the elements of the design of the founding fathers was what we call "federalism." Most people are familiar with the idea of 'checks and balances' in our government, and we usually think of the division of power between the legislative, executive and judicial branches. But there is another division of power within our constitutional system, and that is the division between the federal government and the state governments.
Virginia's own James Madison wrote extensively in the Federalist Papers about how the states would have extensive authority preserved from the federal government to be exercised by the states themselves or reserved to their citizens. When contests about those constitutional boundaries arise, they are to be fought out in our courts, and that is exactly what we are doing in Virginia.
We are fulfilling the founders' expectation of states, that is, because the federal government is overstepping its constitutional authority, the founders expected the states to push the federal government back inside its proper constitutional boundaries, and we are doing that in this case.
I have no doubt which side of this case every single founding father would be on - Virginia's!
Tough Questioning
Very early in the federal government's presentation, the judge asked "if this is constitutional, what limits are there on federal power?" The feds' lawyer never really answered this question. How could he? The judge went on to ask, "if this is constitutional, what's to keep the federal government from telling me what car to buy, to eat asparagus, or to join a gym?" The feds' lawyer's answer was that 'healthcare is different' from everything else.
His reasoning for this was their presumption that everyone will use healthcare at some point. However, this doesn't seem like much of a limiting constitutional principle... What about food? Transportation? Housing? Clothing?
The Statute is Unprecedented... to Everyone but the Federal Government
This administration appears to be the only entity across the country arguing that there's nothing out of the ordinary about the federal law. Even judges ruling favorably to the feds are saying that the federal law is unprecedented, yet the feds in all their briefs keep insisting 'nope, nope, nothing unusual here... nothing to see, move along...' But no one is buying that - no one.
Activity or Inactivity?
One way of thinking about what the feds are trying to do is that in an effort to regulate interstate commerce, they are compelling us all into commerce, i.e., ordering us to buy their mandated health insurance. Virginia's position is that those who decide not to buy health insurance aren't taking any action at all that is related to commerce. All the case law related to the commerce clause addresses people voluntarily engaging in economic activity.
Well, if you're not doing anything (i.e., not buying insurance), there's no activity to regulate. Put differently, you are inactive.
The feds' addressed this argument saying "the appearance of inactivity is a mere illusion."
No, seriously, that's what he said!
So, let me get this straight - if you do something, your activity can be regulated by the federal government, and if you do nothing, your so-called inactivity can be regulated by the federal government... so, what can NOT be regulated by the federal government? Nothing, at least according to the logic of the federal government.
The feds are trying to convert the decision to do nothing into an 'action' or 'activity' that fits within already-existing case law on the commerce clause. This is just one of the leaps of language and logic necessary for the feds' arguments to prevail.
More Problems With the Dictionary
Another good one was when discussing the "penalty" in section 1501(b). The "penalty" is called a "penalty" in the law, i.e., that's what Congress calls it. The "penalty" is a monetary fine you must pay if you fail to buy the mandated, government-approved health insurance. However, according to the federal government "there is nothing punitive about section 1501(b)."
Really? Yes, you read that right. According to your federal government there is nothing punitive about having to pay a penalty.
Again, if we could just get rid of dictionaries and logic, the feds would be able to make all of its arguments without impediments. Oh well, pesky dictionaries...
Constitutional Presumptuousness
Another of my 'favorite' arguments the feds made during the hearing was that "there's no constitutional right to be left alone." While at some level this is technically true, it suggests a very disturbing view of federal government power.
Remember, the Constitution was supposed to establish a limited federal government of only enumerated powers. Put differently, the states and citizens can do whatever they want under the Constitution (I exaggerate of course), but the federal government is supposed to have only limited powers. But now we have a federal government that says that you have no right to be left alone, which suggests that they think they can reach anything you might do (or not do). That doesn't sound very limited to me!
It turns the initial presumptions of the founding fathers upside down. Instead of a restrained government of limited powers, it suggests an all-reaching government with any powers it chooses to exercise. The statement by the lawyer for the feds is a real peek into how this administration views federal power in general and suggests that there is very little (if anything) that they don't think they can reach using that federal power.
Such a view would be antithetical to the founding fathers. It represents the realization of many of the worst fears of James Madison, Patrick Henry and Thomas Jefferson - to name but a few.
What's Next?
The judge said that he would rule by the end of the year, so look for that some time in December.
It is not unreasonable to think that if we lose this case, it will be the end of federalism as we have known it for over 222 years. Thus, the important thing in the ruling is not so much the remedy, but first and foremost the question of constitutionality. The remedy could change when we get to the Supreme Court, but the remedy is secondary to protecting the outer boundaries of the constitution.
I believe that some of the federal government's arguments in court clearly reflect an attitude that the constitution is almost unlimited in its 'flexibility,' which, if true, would be a radical departure from what the founding fathers thought they had established.
Two years ago the United States experienced its worst financial crisis since the 1930s. The crisis began on Wall Street, where misguided bets on risky mortgage loans resulted in enormous losses that few anticipated.Umm, weren't there some in Washington involved in encouraging those "risky mortgage loans?"
[T]here is actually a lot of historical evidence that private sector institutions often do a better job than the state in aiding the poor as well as the rich and middle class. But even if you believe, as I do, that some degree of government redistribution to the poor is needed, that doesn’t justify anything remotely resembling today’s overgrown government. Indeed, redistribution to the genuinely needy would be far easier to maintain if it weren’t for the looming fiscal crisis created in large part by enormous bailouts and entitlement programs that mostly benefit the nonpoor.Link from Instapundit.
Academic Performance Index (API)And those are just the As. The rest are listed at Maggie's Farm.
Access for Infants and Mothers
Acupuncture Board
Administrative Office of the Courts
Adoptions Branch
African American Museum
Agricultural Export Program
Agricultural Labor Relations Board
Agricultural Statistics Service
Air Resources Board (CARB)
Allocation Board
Alternative Energy and Advanced Transportation Financing Authority
Animal Health and Food Safety Services
Anti-Terrorism Information Center
Apprenticeship Council
Arbitration Certification Program
Architects Board
Area VI Developmental Disabilities Board
Arts Council
Asian Pacific Islander Legislative Caucus
Assembly Democratic Caucus
Assembly Republican Caucus
Athletic Commission *
Attorney General
The tea party movement will assert middle-class values, economic nationalism, patriotism and other concepts derided by post-modern elitists. The movement's central tenets -- small government, decentralization of power and end to profligate spending -- are precisely what [historian Christopher] Lasch prescribed to restore American democracy [The Revolt of the Elites and the Betrayal of Democracy].The next two years will be 'interesting.' Read the whole thing.
The elite's fear and loathing of the tea party movement is rooted in the recognition that the real change is only now coming.
What the TSA is doing is mostly security theater, a pageant to reassure passengers that flying is safe. Reassurance is necessary if commerce is going to flourish and if we are going to get to grandma's house on Thursday to give thanks for the Pilgrims and for freedom. If grandma is coming to our house, she may be wanded while barefoot at the airport because democracy - or the equal protection clause of the 14th Amendment; anyway, something - requires the amiable nonsense of pretending that no one has the foggiest idea what an actual potential terrorist might look like.Read it all.
A friend of mine sent me this about his TSA experience. He, unlike most of us, was coming back into the country from Afghanistan on a military charter.True? I dunno - but based on recent TSA news about scanners and 'intimate' patdowns, I wouldn't be surprised if it was.
As the Chalk Leader for my flight home from Afghanistan, I witnessed the following:
When we were on our way back from Afghanistan, we flew out of Baghram Air Field. We went through customs at BAF, full body scanners (no groping), had all of our bags searched, the whole nine yards.
Our first stop was Shannon, Ireland to refuel. After that, we had to stop at Indianapolis, Indiana to drop off about 100 folks from the Indiana National Guard. That’s where the stupid started.
First, everyone was forced to get off the plane–even though the plane wasn’t refueling again. All 330 people got off that plane, rather than let the 100 people from the ING get off. We were filed from the plane to a holding area. No vending machines, no means of escape. Only a male/female latrine.
It’s probably important to mention that we were ALL carrying weapons. Everyone was carrying an M4 Carbine (rifle) and some, like me, were also carrying an M9 pistol. Oh, and our gunners had M-240B machine guns. Of course, the weapons weren’t loaded. And we had been cleared of all ammo well before we even got to customs at Baghram, then AGAIN at customs.
The TSA personnel at the airport seriously considered making us all of the baggage from the SECURE cargo hold to have it reinspected. Keep in mind, this cargo had been unpacked, inspected piece by piece by U.S. Customs officials, resealed and had bomb-sniffing dogs give it a one-hour run through.
After two hours of sitting in this holding area, the TSA decided not to reinspect our Cargo–just to inspect us again: Soldiers on the way home from war, who had already been inspected, reinspected and kept in a SECURE holding area for 2 hours. Ok, whatever. So we lined up to go through security AGAIN.
This is probably another good time to remind you all that all of us were carrying actual assault rifles, and some of us were also carrying pistols.So we’re in line, going through one at a time.
One of our Soldiers had his Gerber multi-tool. TSA confiscated it. Kind of ridiculous, but it gets better. A few minutes later, a guy empties his pockets and has a pair of nail clippers. Nail clippers. TSA informs the Soldier that they’re going to confiscate his nail clippers. The conversation went something like this:
TSA Guy: You can’t take those on the plane.
Soldier: What? I’ve had them since we left country.
TSA Guy: You’re not suppose to have them.
Soldier: Why?
TSA Guy: They can be used as a weapon.
Soldier: [touches butt stock of the rifle] But this actually is a weapon. And I’m allowed to take it on.
TSA Guy: Yeah but you can’t use it to take over the plane. You don’t have bullets.
Soldier: And I can take over the plane with nail clippers?
TSA Guy: [awkward silence]
Me: Dude, just give him your damn nail clippers so we can get the f**k out of here. I’ll buy you a new set.
Soldier: [hands nail clippers to TSA guy, makes it through security]
This might be a good time to remind everyone that approximately 233 people re-boarded that plane with assault rifles, pistols, and machine guns–but nothing that could have been used as a weapon.
The president is not our teacher, our tutor, our guide or ruler. He does not command us; we command him. We serve neither him nor his vision. It is not his job or his prerogative to redefine custom, law, and beliefs; to appropriate industries; to seize the country, as it were, by the shoulders or by the throat so as to impose by force of theatrical charisma his justice upon 300 million others. It is neither his job nor his prerogative to shift the power of decision away from them, and to him and the acolytes of his choosing.This is only a small excerpt of a much longer speech. Read it all.
The proposed warnings, reports the Washington Post, include one "containing an image of a man smoking through a tracheotomy hole in his throat; another depicting a body with a large scar running down the chest; and another showing a man who appears to be suffering a heart attack. Others have images of a corpse in a coffin and one with a toe tag in a morgue, diseased lungs and mouths, and a mother blowing smoke into a baby's face."Smoking is unhealthy, no question about it. But the loss of freedom is more hazardous by far.
American Civil Liberties UnionMake sure it says "Merry Christmas."
125 Broad Street, 18th Floor
New York, NY 10004
The truth is always the simplest explanation. Here it goes in simple language from the beginning: Obama was elected largely because of public furor over Bush/Iraq. The fawning media hid his socialist background. He ran as a centrist. The Wall Street meltdown wiped away the small McCain/Palin lead. Obama in his hubris took that flukish set of events and reinvented them into proof that he could deliver to the left a once-in-a-century EU-style socialist makeover of America. That effort polarized the country, stalled the recovery, and terrified the private sector into stasis. Obama, who was always himself given something (take your pick—Harvard admission, Harvard Law Review billet, Chicago Law School tenure offer, Noble Peace Prize, etc.) without requisite achievement, is thus stunned that the economy is not a malleable law school dean whom he can hope and change into compliance. So naturally he is angry and has turned to almost everything in the past that worked: the race card, the get-out-the-minority vote card, the enemy Republican bad actors, the greedy rich takers, etc.. But now none of the old “them” bogeymen work; the more that tactic is tried, the more the economy stalls and the people get angry. It’s that simple.As with anything Hanson writes, read it all.
NBC execs claim KO violated journalistic standards that no one – left or right – felt applied to him because only NBC actually considered him a journalist. Actually, few even considered him sane, luckily not a job requirement at MSNBC.And the laughter begins.
They like to refer to us as senior citizens, old fogies, geezers, and in some cases dinosaurs. Some of us are "baby boomers" getting ready to retire. Others have been retired for some time. We walk a little slower these days and our eyes and hearing are not what they once were.'Nuff said.
We have worked hard, raised our children, worshipped our God and grown old together. Yes, we are the ones some refer to as being over the hill and that is probably true.
But before writing us off completely, there are a few things that need to be taken into consideration. In school we studied English, history, math, and science which enabled us to lead America into the technological age.
Most of us remember what outhouses were, many of us with firsthand experience. We remember the days of telephone party-lines, 25 cent gasoline, and milk and ice being delivered to our homes. For those of you who don't know what an icebox is, today they are electric and referred to as refrigerators. A few even remember when cars were started with a crank. Yes, we lived those days.
We are probably considered old fashioned and out-dated by many. But there are a few things you need to remember before completely writing us off. We won World War II and fought in Korea and Viet Nam . We can quote the pledge of allegiance, and know where to place our hand while doing so. We wore the uniform of our country with pride and lost many friends on the battlefield. We didn't fight for the Socialist States of America , we fought for the "Land of the Free and the Home of the Brave." We wore different uniforms but carried the same flag. We know the words to the Star Spangled Banner and America the Beautiful by heart, and you may even see some tears running down our cheeks as we sing. We have lived what many of you have only read about in history books and we feel no obligation to apologize to anyone for America .
Yes, we are old and slow these days but rest assured, we have at least one good fight left in us. We have loved this country, fought for it, and died for it, and now we are going to save it. It is our country and nobody is going to take it away from us. We took oaths to defend America against all enemies, foreign and domestic, and that is an oath we plan to keep. There are those who want to destroy this land we love but, like our founders, there is no way we are going to remain silent.
It was the young people of this nation who elected Obama and the Democratic congress. You fell for the "Hope and Change" which in reality was nothing but "Hype and Lies." You have tasted socialism and seen evil face to face, and have found you don't like it after all.
You make a lot of noise but most are all too interested in their careers or "climbing the social ladder" to be involved in such mundane things as patriotism and voting.
Many of those who fell for the "great lie" in 2008 are now having buyer's remorse. With all the education we gave you, you didn't have sense enough to see through the lies and instead drank the Kool-Aid. Now you're paying the price and complaining about it.
No jobs, lost mortgages, higher taxes, and less freedom. This is what you voted for and this is what you got. We entrusted you with the Torch of Liberty and you traded it for a paycheck and a fancy house.
Well, don't worry youngsters, the Gray Haired Brigade is here, and tomorrow we are going to take back our nation. We may drive a little slower than you would like but we get where we're going, and in November we're going to the polls by the millions. This land does not belong to the man in the White House or to Nancy Pelosi and Harry Reid. It belongs to "We the People", and "We the People" plan to reclaim our land and our freedom. We hope this time you will do a better job of preserving it and passing it along to our grandchildren.
So the next time you have the chance to say the Pledge of Allegiance, stand up, put your hand over your heart, honor our country, and thank God for the old geezers of the Gray Haired Brigade.