“White House compromise still guarantees contraceptive coverage for women,” reads the Washington Post headline coming out of President Obama’s press conference this afternoon. Trying to tamp down the escalating political storm his administration created three weeks ago when it ruled that, under Obamacare, employers with religious objections to providing contraceptive and abortifacient coverage must do so anyway, his team has come up with a “compromise.”

Here it is, as reported by the Post – read carefully:

Women still will be guaranteed coverage for contraceptive services without any out-of-pocket cost, but will have to seek the coverage directly from their insurance companies if their employers object to birth control on religious grounds.

Religiously-affiliated non-profit employers such as schools, charities, universities, and hospitals will be able to provide their workers with plans that exclude such coverage. However, the insurance companies that provide the plans will have to offer those workers the opportunity to obtain additional contraceptive coverage directly, at no additional charge.

Got that? Then who’s going to pay for that additional coverage? (It’s not “free.”) The insurance companies? They’ll simply pass the costs back to the religious employer – insofar as the employer picks up at least part of the cost of covering his employees’ health insurance premiums, as most do. So we’re right back where we started from.

This is a fig leaf, which is why progressives have quickly rallied behind the “compromise.” It’s just another example of the something-for-nothing mindset that drives their agenda. Stay tuned. We haven’t heard the end of this.

Obama’s Political Prophylactic is a post from Cato @ Liberty - Cato Institute Blog

The three-week battle over ObamaCare’s contraceptive-abortifacient ruling isn’t letting up. Catholics for Choice has a full-page ad in this morning’s Washington Post, urging the president to stay firm. And it’s the lead story today on NPR’s Morning Edition, which in printed form devotes fully 2 of 16 paragraphs—the last 2—to the other side (not bad for NPR). The gist of the piece is, what’s the big deal? “The only truly novel part of the plan is the ‘no cost’ bit,” says NPR’s Julie Rovner.

“Now millions more women and families are going to have access to essential health care coverage at a cost that they can afford,” says Sarah Lipton-Lubet, policy counsel with the ACLU. “But as a legal matter, a constitutional matter, it’s completely unremarkable.”

Unfortunately, they’re right: our modern anti-discrimination law has been so extended that today it undermines religious liberty on many fronts. Two terms ago, for example, a bitterly divided Supreme Court ruled that the Christian Legal Society, a student group at the Hastings Law School, had to admit “all comers,” not only as members but as officers. (See Cato’s amicus brief defending the group’s right to discriminate in the name of religious liberty and freedom of association.)

Here, the federal Equal Employment Opportunity Commission ruled in 2000 that failure to provide contraceptive coverage violates the 1978 Pregnancy Discrimination Act, an amendment to Title VII of the 1964 Civil Rights Act that outlaws, among other things, discrimination based on gender. And 26 states today have similar “contraceptive equity” laws on the books, Rovner reports, which state courts have upheld in suits brought by Catholic Charities and others. She quotes from the 2006 decision of New York State’s top court:

When a religious organization chooses to hire non-believers, it must, at least to some degree, be prepared to accept neutral regulations imposed to protect those employees’ legitimate interests in doing what their own beliefs permit.

Right there, of course, is the problem. As I wrote over the past two days, no one on the other side is asking employees to do anything contrary to their religious beliefs—or not do “what their own beliefs permit.” Employers are not “imposing their religious beliefs” on their employees, as some have argued. Those employees are still perfectly free to use contraceptives and abortifacients. They just shouldn’t expect their employers, through the group health insurance plans the employers offer, to provide and pay for such measures if doing so violates their religious beliefs. But that would be to discriminate against women, the courts have held, since only women get pregnant. Thus does our antidiscrimination law, as found in statutes, trump religious liberty, as once protected by the Constitution. “To each his own” falls by the wayside when “we’re all in this together,” as ObamaCare requires us to be.

Under ObamaCare, Anti-Discrimination Law Trumps Religious Liberty is a post from Cato @ Liberty - Cato Institute Blog

Today POLITICO Arena asks:

Will the GOP win the birth-control fight?

My response:

The GOP will win the current contraceptive-abortifacient battle going away, because the average American understands the essence of religious freedom: government cannot force people to do things that violate their religious beliefs. The administration may try to frame this as a defense of women’s rights, but that’s pure sophistry. As I wrote yesterday, if the administration’s decision is reversed, women will still be perfectly free to use contraceptives, to seek abortions, and to do whatever else their beliefs permit. They just won’t be able to force others who object to such practices to pay for them.

There’s a bigger issue here, however. This is just the latest example of the perils of ObamaCare. When health care is thus “collectivized,” when we’re “all in this together,” we’re forced to fight for every “carve-out” of liberty. Those progressive Catholics who supported ObamaCare, who are now appalled by this move, should have thought of that before they worked to throw us all in the common pot. This incident is simply an early example of the many battles to come if ObamaCare survives the litigation and the elections ahead.

ObamaCare’s Coercive Essence is a post from Cato @ Liberty - Cato Institute Blog

The Wall Street Journal often publishes op-eds from “the other side,” perhaps out of a sense of fairness, perhaps to show how bad the other side’s reasoning sometimes is – “Don’t take our word for it; see for yourself.” That rationale must have been at play in the decision to publish in this morning’s edition a truly remarkable piece from the pens of three Senate women, Jeanne Shaheen of New Hampshire, Barbara Boxer of California, and Patty Murray of Washington.

In “Why the Birth-Control Mandate Makes Sense,” such sense as emerges from the senators’ effort to defend the Obama administration’s decision to force religious institutions to pay for health insurance that covers sterilization, contraceptives, and abortifacients comes from a simple claim, repeated in several variations: doing so would be good – for women, for children, for families, for businesses and consumers. Indeed, “our nation will be better for it.”

Say no more! Who could be against it? We don’t have to look far for the answer:

Sadly, there is an aggressive and misleading campaign to deny this benefit to women. It is being waged in the name of religious liberty. But the real forces behind it are the same ones that sought to shut down the federal government last year over funding for women’s health care. They are the same forces that just tried to pressure the Susan G. Komen Foundation into cutting off funding to Planned Parenthood for breast-cancer screenings. Once again, they are trying to force their politics on women’s personal health-care decisions.

There we have it: it’s women and the rest of us, up against these sinister “real forces,” hiding behind religious liberty. In sketching this little morality play, it seems not to have occurred to the good senators that there might be people of good will on the other side. That blind spot emerges nicely in a single paragraph:

Those now attacking the new health-coverage requirement claim it is an assault on religious liberty, but the opposite is true. Religious freedom means that Catholic women who want to follow their church’s doctrine can do so, avoiding the use of contraception in any form.

At this point in the argument, if the policy is not an assault on religious liberty, one would expect the senators to show how it protects the religious rights of those Catholic (and other) institutional administrators who are forced to take actions their religious doctrines prohibit. But the rights of those people don’t even arise in the senators’ argument – as if they didn’t even exist. Instead, the focus continues to be exclusively on women, for in the very next sentence they say: “But the millions of American women who choose to use contraception should not be forced to follow religious doctrine, whether Catholic or non-Catholic.”

Who is “forcing” such women “to follow religious doctrine”? They’re perfectly free to use contraceptives, to seek abortions, and to do whatever else their beliefs permit. They just can’t expect others who object to such practices to pay for them. Nor do religious charitable organizations that receive public funds lose their rights either, not if the doctrine of unconstitutional conditions still has weight.

And so we come to the heart of the matter. ObamaCare is just the latest example of the perils of collectivization. When we’re forced to be “all in this together,” we’re forced to fight for every “carve-out” of liberty. Those progressive Catholics who supported ObamaCare should have thought of that before they worked to throw us all in the common pot. This incident is simply an early example of the many battles to come if ObamaCare survives the litigation and the elections ahead.

Three Blind Senators Defend ObamaCare is a post from Cato @ Liberty - Cato Institute Blog

Is the Constitution out of date? That’s the impression that comes across from an article in yesterday’s New York Times, written by the paper’s crack Supreme Court reporter, Adam Liptak. It comes in turn from an article he points to by two law professors, David S. Law at Washington University in St. Louis and Mila Versteeg at the University of Virginia, scheduled for the June New York University Law Review. In it the authors conclude that the Constitution appears to be losing its appeal as a model for constitution drafters in other countries, despite its having served that role up until as recently as 1987, the year of its bicentennial. So what’s changed over the past quarter century?

Unfortunately, from the Times article we don’t get a clear picture of just how it is that the constitutions other countries have drafted in recent years differ from our own, except for the emphasis throughout the piece on rights. Yet right there is a clue about what’s going on. On that score, in fact, Liptak cites striking comments Justice Ruth Bader Ginsburg made in a television interview during a visit to Egypt last week:

“I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.

Liptak then notes, not entirely accurately, that “the rights guaranteed by the American Constitution are parsimonious by international standards, and they are frozen in amber.”

To be sure, the rights enumerated in our Constitution and in the amendments that were added later, including in the Bill of Rights, are few in number. But numbers alone, like rights alone, tell only part of our constitutional story. To tell the story more fully and accurately, we have to step back a bit.

It’s true that our Framers, unlike many others, especially more recently, did not focus their attention on rights. Instead, they focused on powers— and for good reason. Because we have an infinite number of rights, depending on how they’re defined, the Framers knew that they couldn’t possibly enumerate all of them. But they could enumerate the government’s powers, which they did. Thus, given that they wanted to create a limited government, leaving most of life to be lived freely in the private sector rather than through public programs of the kind we have today, the theory of the Constitution was simple and straightforward: where there is no power there is a right, belonging either to the states or to the people. The Tenth Amendment makes that crystal clear. Rights were thus implicit in the very idea of a government of limited powers. That’s the idea that’s altogether absent from the modern approach to constitutionalism—with its push for far reaching “active” government—about which more in a moment.

During the ratification debates in the states, however, opponents of the new Constitution, fearing that it gave the national government too much power, insisted that, as a condition of ratification, a bill of rights be added—for extra caution. But that raised a problem: by ordinary principles of legal reasoning, the failure to enumerate all of our rights, which again was impossible to do, would be construed as meaning that only those that were enumerated were meant to be protected. To address that problem, therefore, the Ninth Amendment was written, which reads: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Over the years, unfortunately, that amendment has been misunderstood  and largely ignored; but it was meant to make clear that the people “retained” a vast number of rights beyond those expressly enumerated in the document.

Thus, the rights expressly enumerated in the Constitution may be “parsimonious,” but understood in light of the larger theory of the document, they are not. Neither, moreover, are they “frozen in amber,” because the courts are called on regularly to interpret and apply them in the varying factual contexts that surround the cases or controversies that are brought before them. Thus, the right to freedom of speech has been read to entail the right to desecrate the flag, and the right to liberty has been read to entail the right to engage in sexual practices that others may dislike. Judges may sometimes fail to draw the proper inferences, of course, or draw inferences not entailed. But that says nothing about the Constitution itself.

The idea, then, that our Constitution is terse and old and guarantees relatively few rights—a point Liptak draws from the authors of the article and the people he interviews—does not explain the decline in the document’s heuristic power abroad. Nor does “the commitment of some members of the Supreme Court to interpreting the Constitution according to its original meaning in the 18th century” explain its fall from favor. Rather, it’s the kind of rights our Constitution protects, and its strategy for protecting them, that distinguishes it from the constitutional trends of recent years. First, as Liptak notes, “we are an outlier in prohibiting government establishment of religion,” and we recognize the right to a speedy and public trial and the right to keep and bear arms. But second, and far more fundamentally, our Constitution is out of step in its failure to protect “entitlements” to governmentally “guaranteed” goods and services like education, housing, health care, and “periodic holidays with pay” (Article 24 of the UN Universal Declaration of Human Rights). And right there, of course, is the great divide, and the heart of the matter.

The modern view, which we too have followed, at least statutorily if not constitutionally, is to recognize all manner of “entitlements” of a kind that can be provided only through massive governmental institutions that engage in material and regulatory redistribution. We are constitutionally out of step in that, to be sure. Countries like Greece, Italy, Spain, and Portugal are far ahead of us.

Our Constitution Is Out of Step with the Rest of the World is a post from Cato @ Liberty - Cato Institute Blog

E.J. Dionne was in high dudgeon at the Washington Post this morning over Citizens United, the Supreme Court’s January 2010 campaign finance decision that ever since has driven the Left into fits of apoplexy. Taking his cue from Obama’s infamous State-of-the-Union condemnation of the Court shortly after the decision came down, plus the class warfare meme at the core of Obama’s reelection campaign, Dionne attacks not only the Court’s wisdom but its motives:

A more troubling interpretation [than “naiveté”] is that a conservative majority knew exactly what it was doing: that it set out to remake our political system by fiat in order to strengthen the hand of corporations and the wealthy. Seen this way, Citizens United was an attempt by five justices to push future electoral outcomes in a direction that would entrench their approach to governance.

Indeed, the Court’s decision “should be seen as part of a larger initiative by moneyed conservatives to rig the electoral system against their opponents,” Dionne continues. Pointing to recent state legislation aimed at ensuring electoral integrity, such as voter ID laws, he charges that “conservatives are strengthening the hand of the rich at one end of the system and weakening the voting power of the poor at the other.”

Reading this screed you’d think that the moneyed classes, including corporations, were all on the Right. Yet as the Post itself reported last fall, “despite frosty relations with the titans of Wall Street, President Obama has still managed to raise far more money this year from the financial and banking sector than Mitt Romney or any other Republican presidential candidate.” Indeed, “Obama has outdone Romney on his own turf, collecting $76,600 from Bain Capital employees through September – and he needed only three donors to do it.”

So let’s get that white-hat/black-hat silliness out of the way and turn to the charge that the Court “set out to remake our political system by fiat.” The charge, if you read the majority’s opinion, is preposterous on its face. Only Justice Stevens has clung to the idea that money is not speech. (Want proof that it is? How much speech have you heard from the presidential campaign of former Louisiana Governor Buddy Roemer, who accepts no contributions over $100?) Well if money is speech, then the First Amendment tells us, straightforwardly, that “Congress shall make no law abridging the freedom of speech.”

Regrettably, despite that simple imperative, the Court has allowed numerous restrictions on the contributions side of the campaign finance ledger. But in Citizens United it opened the door to those who speak through their corporations or unions (the Left’s outrage is directed only to the corporations side of the decision, of course), provided the spending is not coordinated with the candidate. Thus, far from having torn down “a century’s worth of law” – Dionne alludes to the 1907 Tillman Act, which banned corporations from giving directly to candidates – Citizens United simply repealed a provision of the 1947 Taft-Hartley Act that prohibited corporate and union expenditures on independent, non-candidate coordinated campaigns.

But Dionne’s confusion doesn’t end there. Like almost every other Leftist, he attributes the rise of super PACs, his main target, to the decision in Citizens United. But it was the March 2010 DC Circuit’s decision in Speech Now v. FEC that brought about those entities. And almost all super PACs are funded by individuals, not corporations or unions. What Speech Now did was lift the ban on individual contributions of more than $5,000 when individuals get together to speak through Political Action Committees that are independent of candidates.

Dionne abhors those PACs, of course. So do the candidates, because they have no control over what “their” PACs say. (“Save me from my friends!”) Far better it would be if contributors were able to give directly to a candidate’s campaign. This is a big country, with over 300 million people and millions of corporations and unions. Are we really to believe, with so many potential contributors, that candidates for federal office would be easily bought and sold if that were allowed? Well in states with few campaign finance restrictions for state offices – where the number of potential contributors is substantially smaller – the evidence simply does not support the wild charges of corruption that so animate the Dionnes of the world. But what is evidence when your real agenda is class warfare?

E.J. Dionne on Campaign Finance as Class Warfare is a post from Cato @ Liberty - Cato Institute Blog

Today POLITICO Arena asks:

Are Romney’s GOP rivals smart to continue their attacks on capitalism that have so far fallen flat? Would this theme be any more effective for the Obama campaign?

My response:

The Gingrich and Perry attacks on Mitt Romney’s work at Bain Capital are appalling. We expect that from Obama — as in yesterday’s “insourcing” press conference — because his understanding of how markets work is so slim and everything, for him, is politics. Those in the party that purports to stand for free markets should never stoop to such shameless pandering.

Steven Rattner’s piece in POLITICO this morning nicely summarizes the facts surrounding Romney’s work at Bain Capital. And yesterday my colleague Steve H. Hanke pointed to a more detailed study issued recently by the National Bureau of Economic Research, “Private Equity and Employment.” As Rattner puts it, Bain Capital’s record “was extraordinary, among the best in the business.” Yes, restructuring companies may cost jobs. Letting them fail does too — but also costs those who’ve invested in them, many of whom are or will be small retirees. At least Romney did it with private funds, not with taxpayer money or regulatory protections. That’s how capitalism works, for the benefit of all of us.

Capital Confusions over Bain Capital is a post from Cato @ Liberty - Cato Institute Blog

Today POLITICO Arena asks:

Did Obama have the authority to make the Cordray and the NLRB appointments, since the Senate is technically not in recess? And will the president’s shift from bipartisan conciliator to partisan agitator pay off?

My response:
All of Obama’s appointments yesterday are illegal under the Constitution. And, in addition, as too little noted by the media, his appointment of Richard Cordray to head the Consumer Financial Protection Bureau (CFPB) is legally futile. Under the plain language of the Dodd-Frank Act that created the CFPB, Cordray will have no authority whatsoever.

Yesterday, Professors John Yoo and Richard Epstein, writing separately, made it crystal clear that the president, under Article II, section 2, may make temporary recess appointments, but only when the Senate is in recess. Add in Article I, section 5, and it’s plain that the Senate is presently not in recess, just as it wasn’t under Senate Democrats when George W. Bush wanted to make recess appointments. The difference here is that Bush respected those constitutional provisions while Obama — never a constitutional law professor but only a part-time instructor – ignores them as politically inconvenient. Attempts by Obama’s apologists to say the Senate is not in session are pure sophistry and, in the case of Harry Reid, rank hypocrisy, as this morning’s Wall Street Journal brings out.

But clear beyond the slightest doubt is the language of the statute (itself unconstitutional on any number of grounds not relevant here). As my colleague Mark Calabria wrote yesterday, “authorities under the Act remain with the Treasury Secretary until the Director is ‘confirmed by the Senate.’”  A recess appointment, even if it were constitutional, is not a Senate confirmation. There is simply no wiggle room in that language that gives Cordray any authority, as litigation will soon make plain.

So what is this? It’s politics — Chicago politics, plain and simple. If any doubt remained, three years into his presidency, that Obama is a master demagogue, with class warfare as his central tool, this incident should dispel it.

Playing Politics with the Constitution and the Law is a post from Cato @ Liberty - Cato Institute Blog

Today POLITICO Arena asks:

Can Gingrich rein in “judicial activists”?

My response:

As I wrote in the Daily Caller a week ago, Newt Gingrich’s attack on the judiciary in chapter nine of his 21st Century Contract with America is a mass of constitutional confusions. It’s a direct assault on judicial review and on “judicial supremacy,” in particular — the idea that it falls to the courts to say what the law is. Newt would have us believe that that idea was invented by the Supreme Court in its 1958 decision in Cooper v. Aaron, where a unanimous Court told Arkansas officials resisting a school desegregation order that they couldn’t “nullify” a Court decision. But the power of courts to say what the law is far predates that decision. It’s implicit in our written Constitution with its independent judiciary. It was discussed explicitly and at length in the Federalist Papers. And it was secured by the Court in 1803 in Marbury v. Madison.

Gingrich Agonistes is a post from Cato @ Liberty - Cato Institute Blog

I’ve got a piece over at the Daily Caller this morning entitled “Newt’s Constitutional Confusions,” the title of which only hints at the constitutional apostasy to be found in Gingrich’s voluminous 21st Century Contract with America. Section nine, for example, “Bringing the Courts Back Under the Constitution,” is an unvarnished attack on what Newt sees as run-away courts frustrating the will of the people – as if that, and not run-away government, were our main problem today.

In fact, Newt praises Franklin Roosevelt’s infamous 1937 Court-packing threat, after which the Court largely abdicated its responsibility to check the political branches. And he condemns Cooper v. Aaron, the unanimous 1958 Little Rock school desegregation decision (remember the federal troops Eisenhower sent?) in which the Court told state officials they couldn’t “nullify” Supreme Court rulings. Thus his main target is “judicial supremacy,” the idea – implicit in the Constitution, explicit in the Federalist, and secured in 1803 in Marbury v. Madison – that it falls to the Supreme Court, not to the political branches, to say finally what the law is.

But in making that argument, he completely misreads the decisions. (In Kelo v. New London, his very first example of a willful judiciary, the Court wrongly upheld the city’s transfer of Ms. Kelo’s property to a private developer!) He misreads the Federalist. He relies on Leftist critics of the Rehnquist Court’s modest efforts at reviving enumerated powers federalism. And most important, politically, he’s misleading the Tea Party folks, most of whom stand for restoring limited constitutional government. Indeed, the Tea Party people hope to see an engaged Court overturn ObamaCare, just in case Newt – or better, someone who understands the Constitution – doesn’t win in November.

Newt: Big Government Conservative is a post from Cato @ Liberty - Cato Institute Blog

Check out NPR’s Morning Edition today, at least at 8:00 a.m., and you’ll find the lead item isn’t the impending jobs report, the European economic crisis, or even President Obama’s latest campaign speech. No, it’s “Catholic Groups Fight Contraceptive Rule.” Sex, women, discrimination, religion, and health care: What could be more natural for NPR, more right down its alley? Yet the issues the story raises—not broached in this story, of course—go well beyond those pegs. What we have here, in microcosm, is a conflict with a thousand and one variations in the modern ubiquitous state.

New regulations under ObamaCare, it seems, will require employers, universities, and others who offer health insurance benefits covering prescription drugs to cover prescription contraceptives as well. For many Catholics, of course, that’s a concern. As Catholic University President John Garvey wrote recently in The Washington Post, “if we comply, as the law requires, we will be helping our students do things that we teach them, in our classes and in our sacraments, are sinful—sometimes gravely so.” He and others are asking for a religious liberty exception.

But why stop there? The issue is perfectly generalizable. And it arises in the thousand and one ways it does because our ever-expanding anti-discrimination laws, as they restrict private parties, conflict directly with our liberties—in particular, with our right to associate, or not, with anyone we wish, for any reason, good or bad, or no reason at all.

Currently, the story notes, 28 states require contraceptives to be offered in health plans, eight with no exception for religious organizations. Some have tried to get out from under those laws by self-insuring, but that’s where the federal Pregnancy Discrimination Act of 1978 kicks in. Still, the story adds, an EEOC ruling under that statute binds only if the people being discriminated against take action. Hence the ObamaCare rule, which compels up front.

And what’s the rationale for the anti-discrimination rule? “Prescription contraception is a form of health care that is unique to women,” says the ACLU’s Sarah Lipton-Lubet, “and the consequences of the inability to be able to access contraception, those fall primarily on women.” Women would have no access to contraceptives, we’re invited to believe, if their health insurance plans didn’t pay for them—or access as well to anything else not covered, presumably. That’s how we’ll all end up with “Cadillac plans,” until employers, unable to afford them, will stop providing any health insurance benefits at all—yet then will have to pay the penalty ObamaCare exacts for opting out.

But Ms. Lipton-Lubet’s rationale doesn’t stop there: “What the bishops and their allies are asking for is the ability to impose their religious beliefs on people who don’t share them,” she says. Think about that. It’s the bishops who are forcing their beliefs on others, not the government that is forcing employers to pay for coverage they oppose. That’s what we come to when, as Obama has repeatedly said, “we’re all in this together.” Opting out, cost free, is not an option—it’s discrimination, whether in health care, or housing, or lending, or college admissions, or employment, or any other private endeavor that today is so highly regulated by our anti-discrimination laws. Freedom of association is today the exception, not the rule, with government in charge of dispensing the exceptions.

The Presumption of Liberty? is a post from Cato @ Liberty - Cato Institute Blog

Today POLITICO Arena asks:

Should either Justices Thomas or Kagan recuse themselves from the ObamaCare case?

My response:

Justice Thomas is the easier case, because he had no involvement in the ObamaCare legislation or legal strategy, nor did his wife. As Tevi Troy commented in yesterday’s POLITICO, citing “alumni of the White House Counsel’s Office from several administrations,” Thomas’s ”wife’s activities would come into play only if she had a financial interest at stake in the case, which she does not.” And as Marcia Coyle and Tony Mauro noted in Monday’s National Law Journal, citing DePaul Law School’s Jeffrey Shaman, “Twenty-five years ago, they might have said judges should control their wives. But she has a right to her own life.”

Justice Kagan is a closer call. We already know her sentiments about ObamaCare from her breathless email to Harvard Law’s Laurence Tribe: “I hear they have the votes, Larry!!” But the real question is how closely she was involved in developing the legal strategy for defending the law – as head of the Justice Department office charged with that responsibility. As The Hill reported yesterday, “Emails show that Kagan’s office mounted an early and aggressive effort to prepare for legal challenges to the individual insurance mandate, but the records released so far do not contradict Kagan’s statement that she was not directly involved in the planning.” The operative words are “so far,” which is why House Judiciary Committee Chairman Lamar Smith, as POLITICO reported yesterday, “has asked the Obama administration to provide documents and internal correspondence on … Kagan’s role in defense of the health reform law.”

In the end, of course, recusal is the justice’s call. But especially in a case as important as this, the public deserves to know the facts.

Should Thomas or Kagan Recuse Themselves Over ObamaCare? is a post from Cato @ Liberty - Cato Institute Blog

Today Politico Arena asks:

Should Obama have led the supercommittee?

My response:

Whether or not Obama had led the supercommittee in its effort to trim a pittance from our federal deficits and debt, the effort was doomed from the start for the reasons committee co-chairman Jeb Hensarling stated in this morning’s Wall Street Journal:  “Ultimately, the committee did not succeed because we could not bridge the gap between two dramatically competing visions of the role government should play in a free society, the proper purpose and design of the social safety net, and the fundamentals of job creation and economic growth.”

Obama has proven himself clueless about economics from the time he first entered public life, as evidenced by the economic disaster surrounding him and his party. Their vision was soundly rejected by the voters a year ago. If it is rejected again a year from now, we may start the slow climb out of the hole that they, as well as Republicans who share their vision, have put us in. But if the voters give us a mixed result, it’s only a matter of time before our creditors exact the price of our economic irresponsibility. These lessons, the subjects of children’s books and learned lectures, are as old as humanity itself. We have only to heed them.

It Goes Beyond the Supercommittee is a post from Cato @ Liberty - Cato Institute Blog

This morning POLITICO Arena asks:

Has the Occupy Wall Street movement accomplished anything?

My brief response:

Has OWS accomplished anything? Yes, it’s revived the mindless, narcissistic approach to public affairs that came out of the 1960s. And I’m delighted that the mainstream media has given OWS far more sympathetic attention than it ever gave the Tea Party, because it’ll all play out in next year’s elections. March on, OWS!

Bring It On, OWS! is a post from Cato @ Liberty - Cato Institute Blog

Having quickly read the D.C. Circuit’s ObamaCare decision that came down this morning upholding the statute’s individual mandate, I’m struck by this line from Judge Laurence Silberman’s majority opinion:

No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce.

I should think that in a free society, living under a Constitution of enumerated and thus limited powers, that the point should be stated precisely the other way around, namely:

No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority reaches individuals who are not presently engaging in an activity involving, or substantially affecting, interstate commerce.

In other words, is America’s fundamental political principle “everything that is not given (to the government) is retained,” or is it rather “everything that is not retained is given”? What is the presumption, and who has the burden of proof? Since the New Deal Court’s “constitutional revolution,” of course, we’ve lived, unfortunately, under the latter, and paid the price.

Of Presumptions and Principles is a post from Cato @ Liberty - Cato Institute Blog

Today Politico Arena asks:

Will the Obama administration’s decision to scrap its long-term care insurance program be an issue in the 2012 campaign?

My response:

Of course ObamaCare — and the administration’s decision late Friday to scrap its unworkable long-term care insurance program — will be an issue in the 2012 campaign. It will be because ObamaCare is the huge overhang that explains, more than anything else, why employers aren’t hiring and the economy is stagnating. And this one part speaks volumes about the corruption that has surrounded ObamaCare from the start.

Remember, this was the program that was touted as central to the “savings” ObamaCare promised the nation — achieved in part by asking us to pay in for five years before any benefit was ever to be paid out. Yet even then it’s turned out, as Paul Ryan and many others said when the Democrats rammed it through, to be a gimmick designed to make the numbers look good. Like the countless “waivers” the administration has been giving to favored parties, this latest “setback” to ObamaCare is simply a prelude for what’s to come, either at the Court or at the ballot box.

The Perils of Overpromising is a post from Cato @ Liberty - Cato Institute Blog

Today is Constitution Day, marking the day in 1787 when the Framers signed the document they’d spent that long hot summer drafting and sent it out to the states for ratification. In a striking change from not that many years ago, this morning’s papers bring us two significant articles about the current debate over the document.

In The New York Times, Kate Zernike’s “On Day Devoted to Constitution, a Fight Over It” notes how the Tea Party has made the Constitution sexy again, but how doing so has become occasion for battle. Progressive groups, she writes, “accusing the Tea Party of selectively reading the founding document, have responded with a campaign to ‘take back the Constitution’”—the very cry we’ve heard from the Tea Party since its inception three years ago.

Meanwhile, in this morning’s Washington Post, David A. Fahrenthold’s “Congress finds, and lists, meaning in Constitution” focuses on the pledge House Republicans took last January to cite the constitutional authority for any measure they introduced and on how that pledge has played out since then. Not surprisingly, it’s a mixed record, as he details.

But the larger lesson to be drawn from both articles should not be missed. We are again talking about the Constitution. And as Zernike writes, “In one respect, the Tea Party has already won. When groups on the left talk about the Constitution, they are increasingly emphasizing the original text — as the originalists do — rather than the Supreme Court decisions that have upheld programs like Social Security.” That is a distinction we at Cato’s Center for Constitutional Studies have long drawn, namely, that there’s all the difference in the world between modern “constitutional law”—the post-New Deal Supreme Court decisions we live under today—and the Constitution itself.

And we’ll take credit too for helping to bring this debate back to life, because when the Center was created 22 years ago, we took it as central to our mission to revive that debate—in particular,  to help change the climate of ideas to one more conducive to reviving the Framers’ Constitution of liberty through limited government. Toward that end, two days ago we held our tenth annual Constitution Day conference, releasing there our tenth annual Cato Supreme Court Review.

Read this morning’s articles. Then go here for answers to many of the questions they raise.

America Debates the Constitution is a post from Cato @ Liberty - Cato Institute Blog

George Will strikes at the heart of modern liberalism this morning with his discussion of David Bernstein’s new book, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform, co-published by Cato and the University of Chicago Press. As Will concludes:

Long execrated by most law professors, Lochner is the liberals’ least favorite decision because its premises pose a threat to their aspiration, which is to provide an emancipation proclamation for regulatory government. The rehabilitation of Lochner is another step in the disarmament of such thinking.

That gets it exactly right. In fact, this new book by Bernstein, a Cato adjunct scholar, is the fourth in a series of books Cato has lately published, all of which are aimed at disarming those who’ve given us the modern redistributive and regulatory state.

Start with Richard Epstein’s How Progressives Rewrote the Constitution and you’ll see the roots of modern “constitutional law” – not to be confused with the Constitution itself – in the thinking of the Progressives, 30 and more years before the New Deal Court instituted that “law.” As Epstein writes: the Progressives “were determined that their vision of the managed economy should take precedence in all areas of life. Although they purported to have great sophistication on economic and social matters, their understanding was primitive. The Progressives and their modern defenders have to live with the stark truth that the noblest innovations of the Progressive Era were its greatest failures.”

Then go to Tim Sandefur’s The Right to Earn a Living: Economic Freedom and the Law and you’ll see what Progressivism has wrought in the way of impediments to economic freedom. Sandefur traces the natural and common law origins of the fundamental right to earn a living and shows, through modern cases, some of which he himself has litigated, how this right has been thoroughly compromised by the Progressive thinking George Will excoriates this morning.

Finally, to sink your teeth into a detailed history and analysis of the right to freedom of contract, you can do no better than to read David Mayer’s new book Liberty of Contract: Rediscovering a Lost Constitutional Right. The book shatters myths that scholars have created about the Progressive Era, including the notion that the Court was reading a “laissez-faire” ideology into the Constitution – as Justice Oliver Wendell Holmes asserted in his Lochner dissent.

And before I forget it, you’ll find these themes throughout the new Cato Supreme Court Review, due out next Thursday. Read all of this and you’ll be well armed to disarm the Progressive thinking that today is increasingly on the ropes, and rightly so.

Progressivism on the Ropes is a post from Cato @ Liberty - Cato Institute Blog

Last night POLITICO Arena asked:

Who won the Reagan debate?

My response:

Give Rick Perry credit: he had the courage to call Social Security a Ponzi scheme, which it is. As with all such schemes, early entrants got something for nothing (or very little). Late entrants will get nothing for something. Social Security started with 16 contributors for every recipient. It’s now down to fewer that 3, and headed for 2. It’s unsustainable, as Perry said. A private company that ran such a scheme would be prosecuted in less than a New York minute. We should be grateful that a major candidate has finally spoken truth to fiction.

Rick Perry’s Moment is a post from Cato @ Liberty - Cato Institute Blog

Today POLITICO Arena asks:

House Republicans contend that any new funds spent because of Hurricane Irene or other disasters should be offset by cuts elsewhere. Democrats call that an unfair and unprecedented approach to emergency management. Is this conditioning of disaster relief on budget offsets elsewhere fiscally responsible or cold-hearted?

My response:

Disaster relief is a form of welfare — transferring assets from some to others. We can do that voluntarily, or through government. If the latter, then in a world of scarcity — i.e., the real world — only those who haven’t grasped those elementary facts can imagine that the issue won’t be political.

Republicans are right to remind us that there’s no such thing as free disaster relief, and to ask what we want to give up to provide such relief. Democrats who call that question “unfair” and an “unprecedented approach to emergency management” are right on the second point. That’s why we’re in our deficits and debt mess. So the question remains: give up something, or incur more debt? Take your choice, but choose you must.

Disaster Relief Is Not Free is a post from Cato @ Liberty - Cato Institute Blog