By: R.J. Moeller
It's a little presumptuous on my part to put "By: R.J. Moeller" at the top of this post because very few of my own original thoughts will be included in it. Just because I barely went to one semester of law school (which I enjoyed so much that I had already applied and was accepted to seminary before that semester ended), don't confuse me with a legal scholar. What I am is a guy with some very smart friends and a job that allows him to spend a great deal of time reading and listening to smarter people than himself.
I'll start off by saying that no matter what else is delineated here below today, I am utterly disappointed with the ruling (on the whole). If you just take a step back and look at what might have been a mere 24 hours ago had Justice Roberts ruled differently, it's hard not to be. But I'm a conservative, so I spend little time on "what if's" and more time on analysis of what happened, and moving rapidly toward the all-important question: "Where to from here?"
A friend of mine (who shall remain nameless due to the restrictions of his job in the legal profession) sent myself and a few others a thoroughly impressive summation of yesterday's events and implications. I'm going to quote extensively from his correspondence and trust that you'll see why I'm thrilled to be able to do so.
"Five hours and 193 pages of dense legal writing later, permit me [a few] points:
(1) What a great moment for our Republic to see citizens actively engaging the appropriate contours of our constitutional structure....That's awesome. And I think the opinions, particularly Roberts, were written to be citizen-friendly as possible, given the limits of legal writing and reasoning.
(2) Roberts' followed what lawyers call "the presumption of constitutionality" (see his discussion on pages 31-32). The generally accepted starting point is that laws passed by Congress and state legislatures are constitutional -- the burden is on the challenger to prove otherwise. But there's nothing in the Constitution itself that mandates that presumption -- the presumption is a judicial creation that reflects the commitment to deference and judicial modesty (and judges' lack of sophistication about what makes good policy). Some liberals abandon that presumption and operate without a presumption -- they just do what they think aligns most with "constitutional values" (the preferred liberal phrase these days, replacing "the living constitution."). Randy Barnett, the leading libertarian legal theorist...proposes a "presumption of liberty" -- he thinks that we start with freedom, and the legislature has the burden to prove when this infringement on liberty or expansion of government is necessary. I think the future of the conservative legal moment is a non-presumption attitude that goes straight to the text (a commitment which, as I say, is the foundation of the three pillars mentioned above). We just ask straightforwardly, "How does this situation comport with the original meaning of the text of the Constitution?" Obviously considerations of prudence and precedent mean that we don't strike down the Dept. of Education tomorrow, but it would represent a shift toward a primary emphasis on text, since public meaning originalism is the common ground today between Bork and Barnett.
(3) The Medicaid decision is a real win for federalism, and this should not be lost amidst the focus on the mandate. States cannot be treated as local administrative divisions of the federal government, period. They are independent sovereigns, and they have the right to refuse participation in a cooperative-funding program they don't like. And Congress can't radically change the bargain on the program mid-way through. The Court has never set a limit on the spending power before vis-a-vis the states ... This is a big win for states, especially because so many programs are cooperative-funding (transportation and primary/secondary education are the two biggies besides Medicaid).
(4) We should not overestimate the size of the win on the Commerce Clause. I am more sanguine about the Roberts' opinion than [others may be]....Roberts' opinion refers to the Commerce Clause power as "broad" and "expansive." He reaffirms the continuing vitality of Wickard, which is the bugaboo of every legal conservative. Because so few laws regulate "inactivity" by mandating the creation of "activity," I highly doubt this will represent an enduring challenge to the modern regulatory state. This is a win, for sure, but only because it drew a line at the way-far-out boundary and because none of the academics thought this argument serious even six months ago.
(5) There are a few things worth noting in Ginsburg's opinion for the liberals. First, at pages 12-14 she makes a short originalist case for a broad reading of the Commerce Power, quoting Madison, Washington, The Federalist Papers, and the 1787 Convention Records. It shows you how far we've come that the liberals try to justify their result using originalist sources. Also, Ginsburg shows some respect for federalism -- she spends a lot of time discussing the reasons that individual states cannot fix health-care on their own because of transient populations that move based on state-funded benefits. Oh, and her limiting principle is definitely just "hey, health care is unique" (see page 28 of her dissent).
(6) This is not the end. This is the end of the beginning. There will now be a massive wave of litigation against ACA if it is not repealed subsequent to the 2012 election. The HHS mandate is one example. The provisions funding abortion services is another. The structure of the exchanges will be challenged. The structure of the independent payment board will be challenged. And in a 2700 page bill that was a drafting disaster, there are doubtless dozens of other avenues that will lead to lawsuits. This law will be back in court pretty promptly.
Finally, could Congress have crafted a more Orwellian term for the tax/penalty than "shared responsibility payment"? Seriously."
I think what you just read speaks for itself. After consuming my friend's meaty email, and after he sanctioned any and all use of it (save that we keep his name off of it), I knew anything I lamely attempted to write would be insulting to elucidation of complex ideas and concepts everywhere.
So let me (hopefully) help you out even more by directing your attention to a few of the other reactions/commentaries to the SCOTUS decision yesterday that I found particularly compelling:
- First, there is the one and only Dr. Charles Krauthammer with a piece called "Why Roberts Did It." This one's short and sweet and to the point.
- Next, there is this column from Sean Trende of RealClearPolitics.com with his "The Chief Justice's Gambit" submission.
- Lastly, our good friends at Ricochet.com had legal scholars/professors John Yoo and Richard Epstein as the featured guests on their weekly podcast yesterday and you'd be hard-pressed to find better, more entertaining explanation/analysis.
My final and closing thoughts go something like this. Obamacare was sold to the American voting and tax-paying public explicitly NOT as a tax, and yet it's now been upheld because it apparently is a tax. This should be a wake-up call to everyone. There are busy-bodies in this country who want to radically transform things. If you think sitting idly by and wagging your finger at other people in your life who are actively engaged in the arduous task of self-governance is going to bring about a better nation - then we're finished. I don't meant to sound melodramatic, but things don't remain the same simply because you put your head in the sand. We're either getting better as a nation, or we're getting worse.
So what part do you need to play in all of this? Is your problem REALLY that you spend too much time learning history and reading books and discussing pertinent issues? Or is it something else that keeps you from entering the fray?
Regardless of how anyone feels today, these sentiments from Justice Roberts are pretty hard to argue with:
"Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices (Majority Opinion, p. 12)."
This one's now on us - on the American voter. Get involved. Get informed. Elections have consequences.
Oh, and in case you don't buy the whole "Obamacare was NOT sold as a tax back in 2009/2010" line from we conservatives and libertarians, then feast your pretty eyes on this:
By: R.J. Moeller
Which of these two lack-luster options is more predictable: Jay Carney blaming a failure of the Obama administration on conniving rich conservative activists, or burro-to-burro traffic on Interstate 10 in Los Angeles at 5pm?
Here's my translation of what you (regrettably) just heard: we're terrified of looking like idiots tomorrow if this administration's signature piece of legislation is ruled unconstitutional (especially since a "constitutional scholar" like Barack Obama pushed so hard for it).
Let me clear something up for you guys: more money was spent on defeating health care because proponents of it were fewer than opponents to it. So on one hand, it was a sheer numbers game. More of us than them.
Also, the opponents to Obamacare had much more on the line because the average American taxpayer isn't a member of a protected group like the unions, and isn't a senator from Nebraska who can hold out until the White House dances to his corn-husking tune. We were going to be stuck with something we didn't ask for, didn't want, and couldn't get out of.
I'd say that will motivate people more often than not, no?
The bill was NEVER popular, but was still rammed through. THAT is why more money was spent. The president had to bribe many members of congress with sweetheart deals. He had to promise a litany of special interest groups that they could opt-out of Obamacare. So in response, concerned citizens organized themselves and raised money and ran ads and show up to rallies and showed up to the voting booth in 2010 and had their voices heard. Then attorney generals from more than 20 states started filing lawsuits against the government to stop the implementation of the "Affordable" Health Care Act.
But it's much easier for Jay Carney to cast the wide net of "wealthy conservative activists spent a bunch of cash and bamboozled unsuspecting Americans" over the audience and hope he can snag as many suckers as possible in the process.
Don't be a sucker.
It was only a matter of time before we'd be able to utter these words: The R.J. Moeller Show welcomes a New York Times columnist to the show this week. That day has arrived, and we are excited to offer up - for your listening pleasure - our interview with Ross Douthat!
Mr. Douthat joined The New York Times as an Op-Ed columnist in April 2009. Previously, he was a senior editor at the Atlantic and a blogger for theatlantic.com. His most recent book is Bad Religion: How We Became a Nation of Heretics (Free Press, 2012). He is also the author of Privilege: Harvard and the Education of the Ruling Class (2005) and the co-author, with Reihan Salam, of Grand New Party: How Republicans Can Win the Working Class and Save the American Dream (2008). He is the film critic for National Review. A native of New Haven, Conn., he now lives in Washington, D.C with his wife and son.
We chatted with Ross about his affinity for G.K. Chesterton, what it's like to be a conservative who is so closely associated with a place like Harvard and a newspaper like The Times, and what his newest book Bad Religion is all about. Follow him on Twitter at @douthatnyt!
After bidding adieu to Ross, R.J. brings in our favorite reporter - Caroline May of TheDailyCaller.com - for her bi-weekly "Stories You May Have Missed, But Probably Shouldn't" segment where we cover a few headlines that might have slipped through the cracks of your busy week. Adam Carolla is in hot water for saying men are funnier than women, Laura Bush has angry feminists hot on her trail, and Barack Obama's campaign wants your wedding presents.
Follow Caroline on Twitter at @c_maydc!
I came across this story on RealClearPolitics.com today:
Bashir and Blow (real last names of these guys) are agreeing that to require a photo ID to vote might give the election to Mitt Romney (something they don't want to happen) simply because having to go get an ID would cause so many Obama voters to give up on voting.
Just let that statement sink in for a moment...
Then chew on this: Bashir and Blow feel that THEY are the compassionate ones in this situation. The guys who are saying that minorities are so lazy and/or stupid that they can't get an ID to vote are somehow the ones "looking out for the little guy."
Where else in life would such condescension be considered a good, moral thing?
At a certain point you have to ask yourself if certain progressive liberals (like these two) aren't more worried about Obama winning the election than actually helping people in poor neighborhoods whose lives are in such shambles - whose lives contain such little accountability and inspiration - that they can't be expected by the same government that issues them entitlements/welfare/medicaid to get an ID to participate in representative democracy.
I honestly wish I didn't have to oppose liberal Democrats so vehemently. I wish we were closer on an issue like this. We SHOULD be closer on an issue like this
About three years ago, someone at my grad school asked me what I wanted to be doing in five years from that point in my life. My answer was simple: working in some capacity for either Arthur Brooks or Dennis Prager.
I now work for organizations both men oversee.
I tell that story here simply to prevent some from claiming that I am a "homer", or someone who is touting the new course from Prager University with Dr. Brooks merely because I get paid to. I believed in Arthur Brooks' message of making the moral case for freer economic markets long before I had ever even met the guy.
So watch this:
The words "happiness" and "free enterprise" don't usually appear in the same sentence. But Dr. Brooks, President of the American Enterprise Institute (AEI.org), shows that the two are intimately and profoundly connected. The free enterprise system not only creates wealth, it creates the best chance we have to achieve personal satisfaction.
For more videos like this one, check out prageruniversity.com!
We have a jam-packed, star-studded episode of the Values & Capitalism podcast for your listening pleasure this week!
First up, R.J. spoke with a young man by the name of Billy Hallowell who is the Faith/Culture Editor for the news website TheBlaze.com about life as a journalist and the impact "social" issues end up having on economic and political ones.
Billy has been working in journalism and media for more than a decade. His writings have appeared in Human Events, Mediaite and on FOXNews.com, among other outlets. Hallowell has a B.A. in journalism and broadcasting from the College of Mount Saint Vincent in Riverdale, New York and an M.S. in social research from Hunter College in Manhattan, New York. He is the founder of Pathufind Media and lives just outside NYC with his wife. You can find him on Twitter @BillyHallowell.
The second segment of The RJ Moeller Show features a return guest and fellow V&C contributor, Chris Horst, who stops by (via Skype) to chat about real ways to help "the least among us" that don't involve handing all our money over to Bono and Jay-Z.
Chris serves as a regional representative for HOPE International, a Christian-faith-based 501(c)(3) nonprofit organization that alleviates the many dimensions of poverty through the provision of microenterprise development services in 14 of the poorest, least-served countries in Africa, Asia, Eastern Europe and the Caribbean. Chris completed his undergraduate degree in business at Taylor University (Indiana) and holds an MBA from Bakke Graduate University. He currently lives with his lovely wife Alli and their son Desmond (not the character from LOST) in Denver, CO. Make sure to follow our pal Chris on Twitter at @chrishorst.
Last, but certainly not least, the most interesting man with a dog named after a Phoenix Suns point-guard that we know: Eric Teetsel!
"Tweetsel", as he is known in no circles, is the Executive Director of The Manhattan Declaration project in the D.C. area and pops in frequently to dissect and analyze pertinent socio-economic topics of the day. This week's topics include why fishermen and hunters make the best conservationists. Follow Eric on Twitter at @ericteetsel!
Enjoy the episode by streaming it on the application below, or subscribe for free on iTunes!
My parents - Dr. Robert and Cheryl Moeller - have been married for 33 years today. That was Scottie Pippen's number! (And these are the type of comments they get from their three sons anyone tries to say something serious or heart-warming.)
Here's what the two love-birds looked like all of those Chicago Bulls games ago:
I love my parents very much and am so grateful for their relationship. Any of the credit I try and take for my own talents/abilities really came from them. They are both extremely intelligent and articulate people (except my mom never seems to remember how to say the name of the pizza place Giordano's). I'm thankful they met and am grateful they've provided me with the best two brothers and three sisters in this history of humans. Alright, so many Jesus' brother might be able to trump me on that.
But honestly, we have such a great (and crazy and fun) family because of my mom and dad. I remember how bummed I was in 8th grade to learn that we'd behaving another sister (Megan). Then again two years later we got word of yet another baby girl (Mackenzie) who'd be joining us for dinner...forever. Now I can't imagine life without them. Without any of the members of the Moeller clan. And that family I love so much was put together and cared for by two extremely special people.
We celebrate their love and life together, and look forward to many more years of celebration and fond memories!
Oh, and if you're lucky, here's what 33 years will get you:
"Train up a child in the way he should go; even when he is old he will not depart from it." Proverbs 22:6
"If at first you don't succeed - Tweet, Tweet again." -No One
We've been hoping to have journalist/author/podcaster James Lileks on for months now, and now - thanks to the power of Twitter and elbow-grease - that day has finally arrived!
James has been a columnist for his beloved Minneapolis Star-Tribune since 1997 and the prestigious National Review magazine since 2007. He is the author of eight books, including The Gallery of Regrettable Food. James is also the co-host of Ricochet.com's weekly podcast and is known for his lively banter and quick wit.
We wanted to have Mr. Lileks on to share his unique story regarding how he became a prolific writer and talented journalist. Plus, we've been dying to know what his favorite Minnesota State Fair foods might be. You can follow James on Twitter at @Lileks.
Back this week - by popular demand - is our friend Caroline May of The Daily Caller for her now-regular "Stories You Probably Missed, But Shouldn't Have" segment. This time out Ms. May fills us in on Michelle Obama's "Capri Sun" controversy, Lee Greenwood's quick exit from the program of an elementary school's "Spring Sing", and the pervasive, careless waste taking place in a very unexpected way in the US Senate. Don't forget to follow Caroline on Twitter at @C_maydc!
As always, you can stream this episode below or find us (for free) on iTunes!
I have a new post up at the Values & Capitalism blog today in which I skewer the mayor of New York City for his preposterous war on Big Gulps.
Just "doing something" doesn’t work in any other area of our lives, and yet these elected officials would have us believe that it just might work for a city of 20 million people (or a nation of over 300 million). No business "just does something" when their backs are against the fiscal wall. No husband "just does something" when his wife is upset with him. The devil is always in the details.
Whether we’re talking about a company or marriage or Fantasy Baseball team that is able to survive turbulent times, future success can only come from a basic belief that "just doing something" is never an option. There's always a plan to be hatched. There’s always a discussion to be had. And there has to be a desire on the part of the people directly involved to take responsibility for themselves or their business.
The truth is, we can vote ourselves an ever-expanding, busy-bodying government if we want it. We can cede our soda-drinking habits over to leaders who openly admit that their plan "might not be that great." Unlike any other nation in the history of mankind, our fate is in our hands. Benjamin Franklin famously said, "It's a Republic; if you can keep it."
Read the entire thing right here.