“I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate,” Judge Roger Vinson writes. “Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.” (http://www.campaignforliberty.com/blog.php?view=40520) District Judge Roger Vinson hails form in Pensacola, Florida. He sided with 26 suing states.
Will those Senators who’re up for re-election in 2012 bring themselves to vote with their lower-chamber colleagues to repeal the thing? Will the same representatives admit that forcing an individual to purchase a product is wrong, and certainly beyond their mandate?
I doubt it. They’ll tell us that the (Rousseauist) common good, as defined by the state, takes precedent over the common man. We have not heard the last from Obama’s advancing Politburo Of Proctologists.
UPDATE: Vinson’s is really a beautifully written and reasoned Decision. It cleaves to the Constitution. Keith Olbermann’s proxies have begun to tarnish Judge Vinson as a judicial activist, whatever that means. Do these sound like unfair proceedings?
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.
“… 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….”
AND: 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… ”
Also adjudicated was the state plaintiffs objection “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 compulsion.’ … If that line is crossed, the Spending Clause is violated.”
[SNIP]
Left-liberals believe a judicial activist is someone who reverses precedent. Republicans think a judicial activist is someone who disobeys the President. That’s the sum total of how the two parties relate to the law.
“When the large African-American woman—in the employ of the American taxpayer to torment the same subjects at the Miami International Airport—summoned me with a crooked finger for a pat down, I thought of the film ‘Midnight Express.’ And in particular, the scene where Billy Hayes’ far-from-delightful Turkish jailer schemes to enjoy some time alone with the young American. My tormentor wore the same sadistic, atavistic expression. Her giant digits were soon upon my chest and between my legs. …
… The attractiveness variable is, however, a statistical outlier; a red herring that should not form the focus of an uprising at the airports. To counter the salacious, if spurious, sexual angle, the TSA could easily produce accurate evidence of the equal number of attacks perpetrated on feeble, little old men and their wives. It would appear that this cross-section of the population is as likely to be targeted by TSA terrorists as is the attractive, distaff demographic.
“I’ve watched dozens of documented attacks, or accounts thereof, on YouTube. If the footage is at all representative, attractiveness is not the salient feature of the victims. The sex-appeal tack will, invariably, invite evidentiary exculpation: ‘See, I attacked grandpa, too; I’m all about the random.’ You don’t want the TSA’s hounds to be fair in their pursuit of the American people; you want them to cease and desist it. And you want individual culprits and their higher-ups publicly exposed and punished.”
If the countless YouTube clips I’ve cringed through are in any way typical occurrences – then what we have here are affirmatively appointed federal recruits, loosed upon meek, mild-mannered, mainstream Americans. What is salient about the assailed is that they are, from what I’ve observed, members of the pilloried and pliant majority.
This onslaught is a quest for submission, not sex. …”
I know some of you are waiting for the publication of Into The Cannibal’s Pot: Lessons For America From Post-Apartheid South Africa. It’s turning out to be quite the ordeal. At least one publisher is still considering my controversial manuscript. If this fails, fear not; someone clever and courageous will see to it that the true story of the New South Africa (“Rambo Nation”) is told. (And that a good book, if a little different, is published.)
So far, two magnificent men (as writers, thinkers, and human beings) have already returned Praise For The Cannibal. Thank you. You know who you are. What touched me so was the speed with which both gentlemen returned their blurbs. They seemed to sense the urgency of my mission (and I like to think that the thing was a page-turner). How refreshing to encounter towering talents who do not inhabit the solipsistic universe in which most American “writers” (and publishers) are mired.
UPDATE I (Nov. 12): In reply to “becky willard’s” dismay at my mentioning the race of the large woman who “touched me inappropriately.” Oh, but this fact is very germane to the column and to the topic. I would have added that in the “the countless YouTube clips I’ve cringed through” for this column, the victims were all “members of the pilloried and pliant majority.” My dear, that’s code for you know who… But I can’t say, because, well, we don’t speak of reverse racial hatred, now do we?!
Please correct me, “Y’all.” Send me documentation and YouTube footage of Brothers, Sisters and robe-clad Muslims being frisked and tormented. Please. I wish to be proven wrong.
UPDATE II: NATURAL RIGHTS; NOT SECTIONAL PRIVILEGES. Here is what the agents of the TSA, now “lobbying hard for law-enforcement power,” do when travelers express dissent (Via Salon.com.:
… “DISRUPTIVE PASSENGER!!! DISRUPTIVE PASSENGER!!! HEY I GOT A DISRUPTIVE PASSENGER OVER HERE!!! DISRUUUUUUUUUPTIVVVVVE PAAAAAAAASSSSSEEEEEENGEEERRR!!!”
A supervisor ambled over and I explained my case. “Put it in writing and send it to Washington,” was his advice. I got the impression that he more or less agreed with me, but as a front-line worker at the airport he had little say in actual policy or how to enforce it. That’s fair enough, though it did not excuse his colleague’s rudeness and hair-trigger temper.
Imagine that woman with actual law-enforcement power. Or a weapon.
Reportedly TSA is lobbying hard for law-enforcement power, and that it could happen is something worth worrying about. Speak out, or speak up, and you’ll be arrested. Protest the TSA’s rules, or demand an explanation as to why a guard is taking your belongings or possibly violating your rights, and you’ll be locked up.
The problem with this pilot’s account is that the man seems to believe that, “Essential liberty” is the preserve of “a pilot,” because of his position in the flying world hierarchy. Salon would probably agree.
The same cloistered, sectional concerns vis-a-vis natural liberties typify one 2,000-strong, flight attendant’s union, which has been fielding tons of complaints from its members. mauled and violated passengers to not fit the bill.
Liberty doesn’t have an exclusionary clause attached, unless you think, in error, that the state is the source of your freedoms.
The Fourth Amendment to the Constitution reads, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
I am not an attorney, but my common sense tells me that the TSA was asking Mr. Roberts to undergo an unreasonable search without probable cause. If the government can’t tell you, “Here’s why we suspect you, and here’s what we expect to find when we search,” then as I read the Constitution, the search is unconstitutional.
UPDATE IV: Here go those “sectional interests” again (see Update II in this post): Noelle Nikpour is a Republican consultant and strategist who talks frequently and tediously on Sean Hannity’s Great American Panel. This evening she suggested that people like herself and her co-panelists—you know, important people who fly a lot—should be able to acquire a permit that’ll exempt them from being screened afresh as they scurry to their important appearances.
What an exquisite understanding of rights this Republican exhibits. All in all, the Republicans like the police state.
UPDATE V (Nov. 13): Writes my mother-in-law:
“Dear Ilana, have now read this week’s article in full and can sympathize with people going through Security in USA. We have had some of this ourselves going from Airport to Airport in US – each stop we were singled out for ‘Special Treatment’; found the ‘Special Treatment Forces’ obnoxious (administered by, mostly, what you call ‘minorities’), sporting the look of ‘we got the power’ on their faces – no smile, no polite exchange – no nothing. We were herded like sheep and treated as such – in fact sheep might well have fared better.
Found the Security, Immigration etc., in Holland for example – thorough but very polite. USA is paranoid and to my mind have taken it way too far. There must be other ways to ensure safety on Aircraft without making the Public feel like criminals. It’s disgusting treatment and quite unnecessary.
It is however quite necessary in this day and age for Airlines to ensure safe flying – we all want a safe flight wherever we go but there are ways and ways. The Public in general have no objection to security searches for baggage or their person, but it’s the manner in which it is done that is so disgusting.”
[SNIP]
UPDATE VI: This image says it all. The work of Dean Shaddock, via Derek.
UPDATE VII (Nov. 14): Yet more arguments for rights based on occupational privileges. Via the WaPo:
“The Air Line Pilots Association, which represents 53,000 employees with 38 U.S. and Canadian airlines, said it is working with federal agencies to create an exception for pilots who have been subjected, they said, ‘to a long line of ever-increasing security measures that have frustrated and burdened.'”
Peter Rez, a professor of physics at Arizona State University, disagrees. Rez has independently calculated the radiation doses of backscatter scanners using the images produced by the machines.
“I came to the conclusion that although low, the dose was higher than they said,” he said.
Based on his analysis, Rez estimates each scan produces radiation equivalent to 10 to 20 minutes of flight.
In April, four science and medical faculty members at the University of California, San Francisco, sent a letter to the director of the White House Office of Science and Technology Policy expressing concerns about potentially serious health risks related to the X-ray scanners.
In the letter they claimed there could be risks to various population segments, including children, senior citizens and women susceptible to breast cancer. The group also called for a clear screening policy for pregnant women once possible risks to the fetus are known. The group wants a review of existing data and recommendations for additional study by an independent panel of scientific experts.
“‘There is good reason to believe that these scanners will increase the risk of cancer to children and other vulnerable populations,’ a group of scientists from the University of California at San Francisco informed the White House.”
In the past decade, terrorists on airplanes have killed just about 3,000 people — all on one day. Even if the Christmas Day bomber had succeeded, the number would be under 3,500.
Those are horrible deaths. But in that same period, more than 150,000 people have been murdered in the United States. We haven’t put the entire U.S. on lockdown — or even murder capitals like Detroit, New Orleans and Baltimore.
While reducing the murder rate to zero is very desirable, we also understand that the costs, in terms of liberty and resources, are too great. But when it comes to air travel, 9/11 seems to have stripped away our ability to put things in perspective.
UPDATE VIII: “If you touch my junk, I’ll have you arrested.”
“When the large African-American woman—in the employ of the American taxpayer to torment the same subjects at the Miami International Airport—summoned me with a crooked finger for a pat down, I thought of the film ‘Midnight Express.’ And in particular, the scene where Billy Hayes’ far-from-delightful Turkish jailer schemes to enjoy some time alone with the young American. My tormentor wore the same sadistic, atavistic expression. Her giant digits were soon upon my chest and between my legs. …
… The attractiveness variable is, however, a statistical outlier; a red herring that should not form the focus of an uprising at the airports. To counter the salacious, if spurious, sexual angle, the TSA could easily produce accurate evidence of the equal number of attacks perpetrated on feeble, little old men and their wives. It would appear that this cross-section of the population is as likely to be targeted by TSA terrorists as is the attractive, distaff demographic.
“I’ve watched dozens of documented attacks, or accounts thereof, on YouTube. If the footage is at all representative, attractiveness is not the salient feature of the victims. The sex-appeal tack will, invariably, invite evidentiary exculpation: ‘See, I attacked grandpa, too; I’m all about the random.’ You don’t want the TSA’s hounds to be fair in their pursuit of the American people; you want them to cease and desist it. And you want individual culprits and their higher-ups publicly exposed and punished.”
If the countless YouTube clips I’ve cringed through are in any way typical occurrences – then what we have here are affirmatively appointed federal recruits, loosed upon meek, mild-mannered, mainstream Americans. What is salient about the assailed is that they are, from what I’ve observed, members of the pilloried and pliant majority.
This onslaught is a quest for submission, not sex. …”
I know some of you are waiting for the publication of Into The Cannibal’s Pot: Lessons For America From Post-Apartheid South Africa. It’s turning out to be quite the ordeal. At least one publisher is still considering my controversial manuscript. If this fails, fear not; someone clever and courageous will see to it that the true story of the New South Africa (“Rambo Nation”) is told. (And that a good book, if a little different, is published.)
So far, two magnificent men (as writers, thinkers, and human beings) have already returned Praise For The Cannibal. Thank you. You know who you are. What touched me so was the speed with which both gentlemen returned their blurbs. They seemed to sense the urgency of my mission (and I like to think that the thing was a page-turner). How refreshing to encounter towering talents who do not inhabit the solipsistic universe in which most American “writers” (and publishers) are mired.
UPDATE I (Nov. 12): In reply to “becky willard’s” dismay at my mentioning the race of the large woman who “touched me inappropriately.” Oh, but this fact is very germane to the column and to the topic. I would have added that in the “the countless YouTube clips I’ve cringed through” for this column, the victims were all “members of the pilloried and pliant majority.” My dear, that’s code for you know who… But I can’t say, because, well, we don’t speak of reverse racial hatred, now do we?!
Please correct me, “Y’all.” Send me documentation and YouTube footage of Brothers, Sisters and robe-clad Muslims being frisked and tormented. Please. I wish to be proven wrong.
UPDATE II: NATURAL RIGHTS; NOT SECTIONAL PRIVILEGES. Here is what the agents of the TSA, now “lobbying hard for law-enforcement power,” do when travelers express dissent (Via Salon.com.:
… “DISRUPTIVE PASSENGER!!! DISRUPTIVE PASSENGER!!! HEY I GOT A DISRUPTIVE PASSENGER OVER HERE!!! DISRUUUUUUUUUPTIVVVVVE PAAAAAAAASSSSSEEEEEENGEEERRR!!!”
A supervisor ambled over and I explained my case. “Put it in writing and send it to Washington,” was his advice. I got the impression that he more or less agreed with me, but as a front-line worker at the airport he had little say in actual policy or how to enforce it. That’s fair enough, though it did not excuse his colleague’s rudeness and hair-trigger temper.
Imagine that woman with actual law-enforcement power. Or a weapon.
Reportedly TSA is lobbying hard for law-enforcement power, and that it could happen is something worth worrying about. Speak out, or speak up, and you’ll be arrested. Protest the TSA’s rules, or demand an explanation as to why a guard is taking your belongings or possibly violating your rights, and you’ll be locked up.
The problem with this pilot’s account is that the man seems to believe that, “Essential liberty” is the preserve of “a pilot,” because of his position in the flying world hierarchy. Salon would probably agree.
The same cloistered, sectional concerns vis-a-vis natural liberties typify one 2,000-strong, flight attendant’s union, which has been fielding tons of complaints from its members. mauled and violated passengers to not fit the bill.
Liberty doesn’t have an exclusionary clause attached, unless you think, in error, that the state is the source of your freedoms.
The Fourth Amendment to the Constitution reads, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
I am not an attorney, but my common sense tells me that the TSA was asking Mr. Roberts to undergo an unreasonable search without probable cause. If the government can’t tell you, “Here’s why we suspect you, and here’s what we expect to find when we search,” then as I read the Constitution, the search is unconstitutional.
UPDATE IV: Here go those “sectional interests” again (see Update II in this post): Noelle Nikpour is a Republican consultant and strategist who talks frequently and tediously on Sean Hannity’s Great American Panel. This evening she suggested that people like herself and her co-panelists—you know, important people who fly a lot—should be able to acquire a permit that’ll exempt them from being screened afresh as they scurry to their important appearances.
What an exquisite understanding of rights this Republican exhibits. All in all, the Republicans like the police state.
UPDATE V (Nov. 13): Writes my mother-in-law:
“Dear Ilana, have now read this week’s article in full and can sympathize with people going through Security in USA. We have had some of this ourselves going from Airport to Airport in US – each stop we were singled out for ‘Special Treatment’; found the ‘Special Treatment Forces’ obnoxious (administered by, mostly, what you call ‘minorities’), sporting the look of ‘we got the power’ on their faces – no smile, no polite exchange – no nothing. We were herded like sheep and treated as such – in fact sheep might well have fared better.
Found the Security, Immigration etc., in Holland for example – thorough but very polite. USA is paranoid and to my mind have taken it way too far. There must be other ways to ensure safety on Aircraft without making the Public feel like criminals. It’s disgusting treatment and quite unnecessary.
It is however quite necessary in this day and age for Airlines to ensure safe flying – we all want a safe flight wherever we go but there are ways and ways. The Public in general have no objection to security searches for baggage or their person, but it’s the manner in which it is done that is so disgusting.”
[SNIP]
UPDATE VI: This image says it all. The work of Dean Shaddock, via Derek.
UPDATE VII (Nov. 14): Yet more arguments for rights based on occupational privileges. Via the WaPo:
“The Air Line Pilots Association, which represents 53,000 employees with 38 U.S. and Canadian airlines, said it is working with federal agencies to create an exception for pilots who have been subjected, they said, ‘to a long line of ever-increasing security measures that have frustrated and burdened.'”
Peter Rez, a professor of physics at Arizona State University, disagrees. Rez has independently calculated the radiation doses of backscatter scanners using the images produced by the machines.
“I came to the conclusion that although low, the dose was higher than they said,” he said.
Based on his analysis, Rez estimates each scan produces radiation equivalent to 10 to 20 minutes of flight.
In April, four science and medical faculty members at the University of California, San Francisco, sent a letter to the director of the White House Office of Science and Technology Policy expressing concerns about potentially serious health risks related to the X-ray scanners.
In the letter they claimed there could be risks to various population segments, including children, senior citizens and women susceptible to breast cancer. The group also called for a clear screening policy for pregnant women once possible risks to the fetus are known. The group wants a review of existing data and recommendations for additional study by an independent panel of scientific experts.
“‘There is good reason to believe that these scanners will increase the risk of cancer to children and other vulnerable populations,’ a group of scientists from the University of California at San Francisco informed the White House.”
In the past decade, terrorists on airplanes have killed just about 3,000 people — all on one day. Even if the Christmas Day bomber had succeeded, the number would be under 3,500.
Those are horrible deaths. But in that same period, more than 150,000 people have been murdered in the United States. We haven’t put the entire U.S. on lockdown — or even murder capitals like Detroit, New Orleans and Baltimore.
While reducing the murder rate to zero is very desirable, we also understand that the costs, in terms of liberty and resources, are too great. But when it comes to air travel, 9/11 seems to have stripped away our ability to put things in perspective.
UPDATE VIII: “If you touch my junk, I’ll have you arrested.”
“Toward the conclusion of my pleasant stay at the national, WorldNetDaily, ‘Taking America Back’ conference (some images are here), I was asked by the especially able organizer, Albert Thompson, to take part in a panel discussion on illegal immigration. The thinking was that, as an immigrant, I’d be able to speak to the topic with added force.
Unfortunately—or fortunately for the audience and the organizer—previous panels were running late, and I was forced to depart for Miami International to catch one of two flights back to the Pacific Northwest.
In any event, I did not get to say my piece. As I take my duty to do the job Americans won’t do very seriously (to use Peter Brimelow’s refrain), I’ll say it now.
The problem with the immigration master narrative is this: The scope of the discussion is limited to illegal immigration only, and is framed as follows: Follow our laws and we’ll welcome you into out country; break the law, and out you go.
This politically permissible position against illegal immigration, moreover, relies for its justification on the law. But argument from the positive law is usually flawed. The state’s laws—most of which do not comport with natural law—are an unreliable gauge of right and wrong.
What Americans ought to be discussing, and are not, is mass immigration (which subsumes illegal immigration). And, in particular, the radical transforming of America, through state-engineered immigration policies.” …
