Standing by My Man

by James J Heaney Posted on 4 July 2012

health reform, affordable care act, reporting on health, supreme court, barbara feder ostrov, health journalism

The last few days have seen an almost unbroken litany of conservative voices condemning the Roberts decision in NFIB v. Sebelius for being political, opportunistic, and incoherent. It has been embarrassing enough to be on the wrong side of Mark Steyn, Bill McGurn, and John Fund.

Far more embarrassing, however, have been those praising Roberts with me.  They aren’t praising him for the correctness of his legal reasoning, folks.  They’re praising him for being political, opportunistic, and incoherent.  This they term “statesmanship.”  That is what it means to be a “moderate” in America: you believe principles are a handicap, all law is sophistry, and utility is the chief good.

Worst of all has been the fallout from Jan Crawford’s CBS News piece revealing the whens and whats of Roberts’ decision to uphold the law.  The piece itself is lousy with innuendo and speculation as to the whys; I disregard most of it on the grounds that her guessing games are almost entirely unsourced.  Even Ms. Crawford’s off-the-record sources were unable or unwilling to confirm her “it was all politics” angle.  Still, it was deeply discouraging to see this coming from Roberts’ staunchest defenders:

Some informed observers outside the court flatly reject the idea that Roberts buckled to liberal pressure, or was stared down by the president. They instead believe that Roberts realized the historical consequences of a ruling striking down the landmark health care law.

Man.  With friends like these…

Well, I’m with Roberts.  His opinion was the correct one in this case.  Even if Roberts comes out and says he did it all for politics and didn’t believe a word he wrote, I still believe it was correct.  Only two things could persuade me otherwise: (1) an argument articulating why the mandate can not be construed as a tax, or (2) an argument articulating why the Court should not construe it as a tax, given that it is fairly possible.

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Posted in Law, Mere Opinion, Politics, Reads & Reactions | 1,107 Comments

Roberts Rules: Why the Obamacare Ruling was Right

by James J Heaney Posted on 30 June 2012

I still have to read Ginsburg’s opinion and the Scalia opinion’s rabid concurrence with Roberts on the broccoli horrible, but I’ve read everything Roberts and Scalia et al. had to say about the taxing power in NFIB v Sebelius (aka “the Obamacare case”).  I have changed my mind.

The case appears to boil down to two conflicting canons of interpretation.

https://upload.wikimedia.org/wikipedia/commons/a/af/Master_of_the_Spes_Nostra_001.jpg
Pictured: the Canons of Interpretation at the funeral Mass of the Privileges & Immunities Clause, 1873

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Posted in Analysis, Law | 884 Comments

Reads & Reactions: Executive Overreach

by James J Heaney Posted on 16 June 2012

When John Yoo, of all people, tells you that you’ve taken executive authority beyond the bounds of the Constitution, either you’re in a comedy that gets its laughs through dry irony, or you should have serious second thoughts.  Here is Mr. Yoo:

Under Article II, Section 3 of the Constitution, the president has the duty to “take Care that the Laws be faithfully executed.” This provision was included to make sure that the president could not simply choose, as the British King had, to cancel legislation simply because he disagreed with it. President Obama cannot refuse to carry out a congressional statute simply because he thinks it advances the wrong policy. To do so violates the very core of his constitutional duties.

There are two exceptions, neither of which applies here. The first is that “the Laws” includes the Constitution. The president can and should refuse to execute congressional statutes that violate the Constitution, because the Constitution is the highest form of law. We in the Bush administration argued that the president could refuse to execute laws that infringed on the executive’s constitutional powers, particularly when it came to national security — otherwise, a Congress that had a different view of foreign policy could order the military to refuse to carry out the president’s orders as Commander-in-Chief, for example. When presidents such as Jefferson, Jackson, Lincoln, and FDR said that they would not enforce a law, they did so when the law violated their executive powers under the Constitution or the individual rights of citizens.

Full comment at National Review Online.

Posted in Law, Politics, Reads & Reactions | 1,507 Comments

Special Comment on the President’s Institution of the DREAM Act

by James J Heaney Posted on 16 June 2012

I was on a really nice date tonight — mostly just talked for hours — and then I came back post-date to this.  The President has decided that he will no longer enforce valid immigration law, because he does not think it is good law.  Notice that this is not an exercise of prosecutorial discretion, although it appears as one in form.  It is an executive repeal of legislative law that was passed under and in no way violates the Constitutional compact.  Don’t take it from me; take it from his Secretary of Homeland Security:

“I’ve been dealing with immigration enforcement for 20 years and the plain fact of the matter is that the law that we’re working under doesn’t match the economic needs of the country today and the law enforcement needs of the country today,” Napolitano told CNN. “But as someone who is charged with enforcing the immigration system, we’re setting good, strong, sensible priorities, and again these young people really are not the individuals that the immigration removal process was designed to focus upon.”

I wrote this immediately.  I haven’t read the commentaries, I haven’t delved into the legal background, I haven’t glanced at the election impact.  Maybe everyone on the Right is saying this; maybe I’m alone.  But it’s from the heart:

I count myself deeply sympathetic to immigrants, and loyally trace my family line back to Kate Durkin, the bold Irish woman whose family shipped her here in the depths of the potato famine — because they could not feed her. She started with nothing, ended with little, and sacrificed everything to get our family on its feet. She came over in an era before immigration was at all restricted, and I know how broken our modern immigration system is. I have a lot of worries about the DREAM Act specifically, but I do, in general, support a path to citizenship for illegal immigrants. Let them pay their debt to our society and get on with living.

All that being said, this order is a flagrant, brazen violation of President Obama’s oath of office. “I do solemnly swear,” he said three years ago, “that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” His office — his sole and highest duty — is to faithfully execute the law. That’s not me talking; that’s the Constitution. Presidents have bent the law, often, in service of dire needs, but to simply come out and announce that you, personally, have decided Congress is acting “too slowly” and isn’t showing enough compassion, and therefore you have decided to ignore valid law is — was — unthinkable. I’m frankly astonished, partly that the President is willing to do this, but mostly because he apparently believes he’ll get away with it. What should terrify all Americans is that he might.

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Posted in Law, Mere Opinion, Politics | 5 Comments

New Study on Same-Sex Parenting Raises Questions

by James J Heaney Posted on 11 June 2012

There’s a new study out next month, by Dr. Mark Regnerus, about same-sex parenting.  The study relies on a national probability sample — and that is a big deal.  Nobody has ever done that before.  Since any general sociological finding not based on a probability sample has approximately the same weight as cheesecake on a serving plate made of cavorite, we have not, to date, really known anything solid about same-sex parenting and its long-term effects on children.

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Thomas More, Cinderella, and Religious Freedom in America

by James J Heaney Posted on 9 June 2012

These comments were delivered at the St. Paul Stand Up For Religious Freedom rally by Dr. Anne Maloney, on June 8th, 2012, in front of the Warren E. Burger Federal Building in St. Paul.  Dr. Maloney is an Associate Professor of Philosophy at the University of St. Catherine.

This is not a place I thought that I would ever be. I am a big fan of St. Thomas More, and I have seen, many times, Robert Bolt’s play A Man For All Seasons. Bolt’s play shows us what happens as Henry VIII continues to insist that Sir Thomas swear fealty to him, Henry, as head of the new Church of England. To do so would, of course, violate More’s religious freedom and his conscience, and so More  refuses. When Thomas’ friends express fear that he will be harmed, perhaps even executed, for refusing to violate his conscience, this line keeps coming up:  “oh for God’s sake; this isn’t Spain. This is England.” I always used to sigh when hearing that line, struck by the naivete of those Brits who did not see what was coming, who did not see where they stood. Thomas would be executed for refusing to violate his conscience, for refusing to violate the religious freedom that England’s Rule of Law guaranteed.

Here we stand. I never thought I would be here. Yet here we are.

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Posted in Faith & Morals, Law | 152 Comments

Moderate Republicans Triumph at MN House District 49A Convention

by James J Heaney Posted on 10 May 2012

Just got back from the endorsing convention for Minnesota House District 49A.  After four rounds of balloting, former Pawlenty energy adviser and local GOP establishment figure Bill Glahn secured the nomination with 62% of the vote, defeating former Met Council vice-chairwoman Polly Peterson-Bowles and small businessman Steve Wise.  (Candidates had to win 60% of the vote to avoid facing one another in the primary.)

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Posted in Horse Race, Mere Opinion, Politics | 216 Comments

In Conversation: Some Thoughts on Global Warming

by James J Heaney Posted on 6 May 2012

I started discussing global warming with an eagerly-moderate friend of mine on Facebook, and it made good blog fodder.  I’ve summarized his posts as questions, because I’ve learned that some people don’t like having their exact words reposted on some public blog (even without attribution), but my replies are essentially verbatim.  I will try to keep my interlocutor from sounding like poor Glaucon in my retelling.

Q: What do you think of this HuffPo feature on global warming by Twin Cities weatherman Paul Douglas?

Paul Douglas was the only local weatherman to predict the Halloween Blizzard of ’91, so I will always pay him attention. Never knew he was Republican before; cool.  Still, like nearly everyone talking about global warming, he is long on diagnosis and short on prescriptions less costly than the disease.

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Posted in In Conversation, Mere Opinion, Politics | 1,508 Comments