How long do you think China, Japan, Saudi Arabia, etc., will continue buying US Treasurys when they realise there is only ONE way in which the US can begin to pay SOLELY THE SERVICE ON THE DEBT and that is through DEBT MONETISATION, which is something no country in history has survived, and QUANTITATIVE EASING, which has led to food riots around the world and double-digit inflation in the BRICS, as well has other countries?

Knowing that the incessant printing of fiat dollars will devalue their investments and that the world's biggest bond fund not only dumped over 1 trillion dollars in US securities, but is now shorting them at 3%, why would any of the creditors of the United States continue to loan the country trillions of dollars to be used for solely debt service payments?

As Jim Rogers has observed, “History teaches us that such imprudent monetary and fiscal behavior has always leads to economic disaster.”

Every new and additional dollar devalues a dollar invested in Treasurys. Every new and additional dollar moves the United States closer to seeing its dollar removed as the world's reserve currency. Many might be tempted to say that the United States should have to be "one of the gang" and they are certainly entitled to that opinion, but I wonder if they have the foggiest idea of what will become of the dollar, exports, imports, and the United States' entire economy.

Take for example, oil. Oil is priced by the dollar, which is to say it is bought and sold in United States dollars. When the United States purchases oil, it uses the dollar….but, so does the United Kingdom. The difference is that Britain must first purchase dollars before it can buy a drop of oil. Canada is one of the United States largest suppliers of oil, but because the Canadian Dollar is not the world’s reserve currency, Canadians pay more than a dollar than its neighbor to the south, the United States because the Brits, like the Canadians, must pay transaction costs when purchasing dollars – something Americans, obviously, do not have to do. The luxury of the dollar being the world’s reserve currency is that gap. That gap affords a standard of living for Americans unparalleled in the world. Because of this one fact, other countries are much more protective of their currencies than the Federal Reserve and politicians in Washington are of the United States Dollar.

While there are undoubtedly other factors, including regulation, VAT, fees, etc., to explain some of the higher price paid by Brits, but even that doesn’t fully explain the 8.16 dollars for a gallon of gas. Even at 4 dollars a gallon, the US is actually getting quite a deal and it is not because the country is the sole remaining superpower or has Wall Street or better sports leagues and universities or the Grand Canyon. Brits pay 132.9p per litre of petrol, which works out to £ 5.03 per gallon or 8.16 dollars per gallon. The primary reason that Brits pay more than Americans for commodities is because, unlike the US, it has to buy dollars first and that makes its leaders a little more protective of its currency. If a country devalues its currency, prices will rise and the standard of living for its people will fall.

Britain is not alone in this. If it needed any more of a reason than the disaster of the Weimar Republic and hyperinflation, Germany has a policy of seeking either a trade balance or imbalance it is favour to protect its investments along with the euro. Simply put, it tries to sell the same amount or more of its products to the world than it imports.

Alas, the United States does not protect its currency any more than it cares about its trade imbalances. After decades of trade surpluses, the country became a net importer. Due in part to the change from a fixed exchange rate to a floating rate, as well as new trade agreements, the value of goods imported into the country began to outpace the value of exports. In 1960, foreign goods made up just 8% of Americans' purchases. Today, nearly 60% of everything we buy is made overseas. In 2010, the trade deficit totaled 497.8 billion dollars, according to the Federal government. Raising tariffs, the minimum wage, mandating benefits packages, etc., will do nothing but make the situation worse. Texas isn’t competing with California here. The United States is competing with China, whose people make an average of 86 cents per hour or around 3,000 dollars per year.

Until now, the world’s suppliers didn’t mind being paid in dollars for their imports. Selling a widget to America for 1 dollar resulted in one fewer dollar that would have to be purchased before buying a barrel of oil. In addition to squawking about a “new basket of reserve currencies,” countries are beginning to demand payment in other forms, such as euros, yuan, and yen or a combination of two or all. Not only do they get to avoid transaction fees, the global market gets to level the playing field by forcing the US to do what it already does. To understand how far down the Dump the Dollar plan has traveled, listen to what Dr. Ricardo C. Amaral, considered one of the greatest Brasilians, has said:

"The US dollar served its purpose since the end of WWII and became major foreign exchange reserve currency...[but] the days of the US dollar playing that special role...has reached the end of the line, since today that system is very sick and it is dying a slow death….the major collapse of the US dollar creating the biggest international monetary crisis that the world has ever seen."

The moment that the dollar is unpegged, you will see gasoline and the prices of everything skyrocket and I am NOT talking in terms of a few percentage points in inflation, but, rather, a shock to America on the scale of Pearl Harbour and 9/11. Consider that mortgage rates are now around 4-4.5% due in large part to the Fed’s actions, but if the demand for the currency falls, interest rates will have to rise in order to attract investors. Overnight, mortgage rates alone could easily zoom to 10%, 15% or 30% higher, housing prices would collapse and the stock market could easily see a 40% decrease in value.

Consider this: The United States is approaching 10% real inflation (BRICS are already there or nearly so), U-6 unemployment is near 17%, and Q1 growth has been adjusted to all of 0.4%. The Federal Reserve and Treasury Total Money Supply have exploded by hyperinflationary levels since the onset of the financial crisis. In 2008, there were approximately 2.75 trillion dollars in circulation. That number skyrocketed to 8.5 trillion dollars by the end of 2009 before starting to slowly ebb. As inflation continues to rise, unemployment and incomes remain constant, and growth is extremely anemic, Washington continues to demand stimulus. More dollars will greatly increase the risk of hyperinflation, a very weak or trashed currency, and near permanent double-digit unemployment. When the drug of inflating money is withdrawn, the market will correct massively. Historically, when a country has endured hyperinflation through monetisation and the former equivalent of qualitative easing, going cold turkey triggers shock, in the very least, and/or revolution.

The scenario above plays out in all sorts of commodities. If you thought the Carter years were bad, you will look back on that era with a little nostalgia. If you thought wages were sluggish or even inert during the Bush years, you will pine for the day. If you think the high unemployment, approaching double digit real inflation, wage declines, 18% stagflation, idiocy of putting a lizard before energy, the ridiculous NLRB’s assault on Boeing, just wait.

Since I began living in the United States, I have constantly heard that you will not recognise your country in such-and-such amount of time. While not saying that such is a Henny Penny moment considering the Progressivism, profligacy, incompetence, treachery, conniving, etc., of the Bush and Obama administrations, if you think that you will not recognise your country in 2016 if Obama is reelected, I hate to break it to you, but Barack Obama is pretty much irrelevant. There isn’t a boneheaded move big enough for Obama to make that comes within a few galaxies of what will happen to the United States should the dollar be abandoned by the world and/or collapse.

If you are one, who is oblivious or complacent or optimistic or trusting and doesn’t believe the world would ever dump the dollar because they need us as much as we need them, well it may come as a shock to you, but on 6 October 2009, China, Russia, France, and Japan met in secret (in other words, the United States was not told) to do just that. Among other issues, four of the leading economies discussed the cessation of pegging oil prices to the United States Dollar and to abandon dollar dealing in oil and for other commodities. Our “they-need-us-more-than-we-need-them” friends are, as Robert Fisk of the UK Independent wrote at the time, transitioning from the United States Dollar to a basket of currencies, including the Japanese yen and Chinese yuan, the euro, gold and a new, unified currency planned for nations in the Gulf Co-operation Council, including Saudi Arabia, Abu Dhabi, Kuwait and Qatar with Brasil, India, and South Africa expressing interest in the project. Since 2009, China has been slowly divesting itself of dollars. It has been massively purchasing gold, as have Mexico, India, and others. Investors have been buying enormous amounts of gold. George Soros, David Einhorn, and John Paulson have purchased well over 1 billion dollars in gold. The University of Texas has purchased gold to the tune of 1 billion dollars. Even the Strategy, Policy, and Review Department of the IMF in its white paper, “Reserve and Accumulation and International Monetary Stability,” has recommended that the world move away from the dollar, adopt one global currency and countries to subject themselves to a global central bank.

Here's some of what is happening in Europe...

London, the 13th-biggest Jewish city in the world has an aging Jewish population. There are less than 200,000 Jews in Britain and 100,000 Brits convert to Islam every year. Lord Ahmed only has to threaten and the country kowtows. The Archbishop of Canterbury has called for shar'ia law to be introduced.

British schools are removing the Holocaust and the Crusades from GCSE coursework for fear of offending Muslims.

I think that I've told you about Anjem Choudary. He is the firebrand radical imam, who was interviewed on ABC's “This week” with Christiane Amanpour. While Ms Amanpour neglected to confront him when he claimed: “one day the flag of Islam will fly over the White House”, she also conveniently forgot to inform the audience that Choudary has told the Royal Family "to convert or else" (and has threatened to decapitate the Queen, Prince Charles, Prince WIlliam and Prince Harry), has posted photographs of Buckingham Palace, Nelson's Column, St. Paul's, Westminster Abbey, The Tower, Windsor Castle and many other historic landmarks after Islamification. He has also said that all homosexuals will be executed when Shari'a becomes the Law of the Realm. You should also know that Choudary and his fellow radical imams danced in the streets following 11.09.01.

While Ground Zero was still smouldering, a Jewish yeshiva student reading the Psalms was stabbed 27 times on a London bus.

The cover of the New Statesman, a left-wing magasine, depicted a large Star of David stabbing the Union Jack. Oxford professor Tom Paulin, a noted poet, told an Egyptian interviewer that American Jews, who move to the West Bank and Gaza, "should be shot dead."

The Islamist Lutfur Rhaman was recently elected as the first executive mayor of the London Borough of Tower Hamlets could offer us a harrowing glimpse into Europe's Eurabian future. He belongs to the Islamic Forum of Europe, an organisation which has expressed contempt for democracy and support for jihad and the imposition of shari'a law on British society. Azad Ali, the IFE's community affairs coordinator in London, was quoted declaring: "Democracy...if it means at the expense of not implementing the sharia, of course no one agrees with that." A 2009 recruitment manual for the group states its programme in unequivocal language:

"Our goal is not simply to invite people and give da'wah [call to the faith]. Our goal is to create the True Believer, to then mobilise those believers into an organised force for change who will carry out da'wah, hisbah [enforcement of Islamic law] and jihad [struggle]. This will lead to social change and iqamatud-Deen [an Islamic social, economic and political order]."

The organisation maintains close ties with the East London Mosque in which Jammat al Islami -- a fundamentalist Bangladeshi Islamic party, holds sway.

The rise of a politically active class of Islamic fundamentalists has long been expected in Europe but few thought their rise would be so swift and sudden in Britain. Due to some recent voter approved structural changes in the political organisation of the Borough, the new mayor of the town has almost sole authority over a nearly U.S.D. 1 billion budget. His authority to effect change to Borough rules and regulations is without precedent in the history of local British government.

What, then, can the non-Muslim denizens of Tower Hamlets now expect?

Construction projects for one -- such as the so-called "Hijab Gates" -- huge arches in the shape of the Muslim veil at either end of the area's famous Brick Lane. Community libraries filled, as they have been over the past two years, with extremist Islamic literature. Streets renamed with Islamic motifs (many street signs already appear in English and Bengali). Major community thoroughfares blocked and closed down in celebration of the Eid Festival. And the increasing harassment of Muslim and non- Muslim women who dress immodestly (as was witnessed during the mayoral election campaign).

Antisemitism, wrote a columnist in The Spectator, "has become respectable . . . at London dinner tables." She quoted one member of the House of Lords: "The Jews have been asking for it and now, thank G-d, we can say what we think at last."

In Malmö, Sweden, a surge in anti-Semitic violence from, ahem, "certain quarters" (Muslim) has led Jewish residents to abandon the city in fear for Stockholm and beyond.

In Odense, Denmark, last year superintendent Olav Nielsen announced he would no longer admit Jewish children to the local school because of complaints from Muslims.

In Belgium, thugs beat up the chief rabbi, kicking him in the face and calling him "a dirty Jew." Two synagogues in Brussels were firebombed; a third, in Charleroi, was sprayed with automatic weapons fire.

In Italy, the daily paper La Stampa published a Page 1 cartoon: A tank emblazoned with a Jewish star points its gun at the baby Jesus, who pleads, "Surely they don't want to kill me again?" In Corriere Della Sera, another cartoon showed Jesus trapped in his tomb, unable to rise, because Ariel Sharon, with rifle in hand, is sitting on the sepulchre. The caption: "Non resurrexit."

In Amsterdam, mayor Lodewijk Asscher is considering using police offcers posing as Jews in an attempt to stamp out anti-semitic violence. And, secret recordings have been shown that display young Muslim men shouting and making Nazi salutes in different areas of the city.

The Norwegian government, cheered on by the Socialists, named Mahdi Hasan as the 2009 Role Model of the Year. Hasan has publicly called for a ban on homosexuality enforced by execution, if necessary. Was he condemned? No. He was applauded.

The police in the Norwegian capital Oslo revealed that 2009 set yet another record: compared to 2008, there were twice as many cases of assault rapes. In each and every case, not only in 2008 and 2009 but also in 2007, the offender was a non-Western immigrant.

According to French-government statistics, rapes in the housing projects have risen between 15 and 20% every year since 1999. In these neighbourhoods, women, including non-Muslims, have indeed begun veiling only to escape harassment and violence. In the suburb of La Courneuve, 77% of veiled women report that they wear the veil to avoid the wrath of Islamic morality patrols. 

In Spain, Muslims use Article 525 of the Spanish Penal Code, which makes it a crime to offend the feelings of the members of a religious confession, to sue people like teachers that have the unmitigated gall to discuss issues like Serrano ham.

Many banks are abandoning the so-called piggy banks, because they are afraid of losing Muslim customers. Muslims regard the pig as an unclean animal.

In Germany, a rabbinical student was beaten up in downtown Berlin and a grenade was thrown into a Jewish cemetery. Thousands of neo-Nazis held a rally, marching near a synagogue on the Jewish sabbath. Graffiti appeared on a synagogue in the western town of Herford: "Six million were not enough." German butchers who sell pork are targeted by Muslim extremists. Muslims occasionally spit on sausages on sale at open-air markets.

In some European cities Muslim taxi drivers refuse to transport dogs, even blind persons with guide dogs. Two schools in Berlin have installed two separate entrances – one for German Christians and Jews and the other for Muslim Arabs and Turks.

In Lyon, a car was rammed into a synagogue and set on fire. In Montpellier, the Jewish religious center was firebombed; so were synagogues in Strasbourg and Marseille; so was a Jewish school in Creteil. A Jewish sports club in Toulouse was attacked with Molotov cocktails, and on the statue of Alfred Dreyfus in Paris, the words "Dirty Jew" were painted. In Bondy, 15 men beat up members of a Jewish football team with sticks and metal bars. The bus that takes Jewish children to school in Aubervilliers has been attacked three times in the last 14 months. According to the police, metropolitan Paris has seen 10 to 12 anti-Jewish incidents per day since Easter.

Walls in Jewish neighborhoods have been defaced with slogans proclaiming "Jews to the gas chambers" and "Death to the Jews." The weekly journal Le Nouvel Observateur published an appalling libel: It said Israeli soldiers rape Palestinian women, so that their relatives will kill them to preserve "family honor." The French ambassador to Great Britain was not sacked -- and did not apologize -- when it was learned that he had told guests at a London dinner that the world's troubles were the fault of "that shitty little country, Israel."

"At the start of the 21st century," writes Pierre-Andre Taguieff, a well-known social scientist, in a new book, "we are discovering that Jews are once again select targets of violence. . . . Hatred of the Jews has returned to France."

But of course, it never left. Not France; not Europe. Antisemitism, the oldest bigotry known to man, has been a part of European society since time immemorial. In the aftermath of the Holocaust, open Jew-hatred became unfashionable; but fashions change, and Europe is reverting to type.

There are websites now tracking the violence and anti-Semitism in Europe. It is frightening. 

Hitler's Ghost Haunts Europe.

The First Amendment protects workplace speech from government abridgment, so long as the communications "do not contain a `threat of reprisal or force or promise of benefit.´" "[A]n employer's free speech right to communicate his views to his employees is firmly established and cannot be infringed"; and likewise, courts of appeals have held, for employees' free speech rights. See: NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 618 (1969) (employer speech); NLRB v. Local Union No. 3, 828 F.2d 936 (2d Cir. 1987) (applying Gissel to union speech); Hospital & Serv. Employees Union, Local 399 v. NLRB, 743 F.2d 1417, 1428 n.8 (9th Cir. 1984) (subjecting regulation of union speech to strict First Amendment scrutiny). Though the National Labor Relations Act has a specific proviso that guarantees both employer and employee free speech, 29 U.S.C. § 158(c) (1988), the free speech rights established by Gissel are based not on this proviso, but on the First Amendment itself. "[Section] 8(c) . . . merely implements the First Amendment by requiring that the expression of `any views, argument, or opinion´ shall not be `evidence of an unfair labor practice,´ so long as such expression contains `no threat of reprisal or force or promise of benefit.´" Gissel, 395 U.S. at 617.

Unless an employee is working pursuant to an employment contract with a morals clause or similar restriction, employers, including governments, cannot infringe upon their employees First Amendment rights provided that the speech is not made during the course of employment or under colour of law. In fact, governments have to be very careful in this area because infringing on the constitutional rights of employees or ordinary citizens can trigger a 1983 suit (deprivation of constitutional rights by government or its agents acting under colour of law).

I agree with Justice Souter, who wrote in his Garcetti dissent, "[T]his ostensible domain beyond the pale of the First Amendment is spacious enough to include even the teaching of a public university professor, and I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to official duties.’”

I think that Souter perfectly presents the potential problem. In Garcetti, a Deputy DA was contacted by defence counsel on the issue of a challenge to a search warrant because of alleged inconsistencies in the proffered affidavit of police. Ceballos conducted his own investigation during the course of his employment and concluded that the defence counsel was correct. He prepared a memo and sent it to Gil Garcetti (DA of OJ Simpson fame). His superiors dismissed his claims and continued to prosecute the criminal case. Ceballos later sued claiming that the DA's office had retaliated against him.

The Court held that statements made by public employees pursuant to their official duties are not protected by the First Amendment from employer discipline. Yet, this holding flies in the face of the holdings in whistleblower cases. We should want more speech, not less. We should want whistelblowers and professors that challenge the status quo.

In order for a law or code restricting speech to be constitutional, it must survive strict scrutiny. Along with the lower standards of rational basis review and exacting or intermediate scrutiny, strict scrutiny is part of a hierarchy of standards employed by courts to weigh an asserted government interest against a constitutional right or principle that conflicts with the manner in which the interest is being pursued, United States v. Carolene Products Company, 304 U.S. 144 (1938). Strict scrutiny is applied based on the constitutional conflict at issue, regardless of whether a law or action of the Federal government, a state government, or a local municipality is at issue. For a law or code restricting speech to survive strict scrutiny and be upheld as constitutional it must be 1) narrowly-tailored, 2) the state must also have a compelling governmental interest, and 3) the law or policy must be the least restrictive means for achieving that interest.

In order for a university to succeed in limiting the speech of its employees in the classroom or elsewhere, it is going to have to satisfy all three prongs and I don't see how it can. What is the compelling governmental interest in preventing types of speech on campus?

The most common government interests cited are "harassment," "workplace environment," etc. We start from the position that free speech is the ideal. Then, we have to weigh the rights of others against those of the speaker. We might agree that an individual has the right to condemn soldiers, Christians, Jews, etc., but that doesn't mean that he has a protected right to speak thusly at his place of employment. These cases are usually fact-specific and require the least onerous infringement.

There is an important distinction between the Vinson/Hudson and Steeh/Moon rulings. In the law, only the Supreme Court can alter the manner in which doctrines are applied. In the law, only the Supreme Court can devise new tests. In the law, only the Court can expand existing doctrine.

Instead of basing his ruling on precedent, Judge Steeh, the Michigan Federal judge who upheld the individual mandate, created an entirely new test AND expanded the Commerce Clause to cover economic INACTIVITY and DECISIONS. In all of the caselaw, the Commerce Clause has only been applied to activity that is economic in nature. Even Steeh, who upheld Obamacare, noted:

“The Court has never needed to address the activity/inactivity distinction advanced by plaintiffs BECAUSE IN EVERY COMMERCE CLAUSE CASE PRESENTED thus far, THERE HAS BEEN SOME SORT OF ACTIVITY. In this regard, the Health Care Reform Act arguably presents an ISSUE OF FIRST IMPRESSION.” -Judge Steeh

ONLY THE SUPREME COURT CAN EXPAND DOCTRINE BEYOND THE PARAMETERS IT HAS PREVIOUSLY DELINEATED.  Judge Steeh did not have that authority. Period.

In the context of the Commerce Clause, not only MUST the law address ECONOMIC ISSUES that are likely to have a SUBSTANTIAL, MATERIAL and/or ADVERSE IMPACT ON INTERSTATE COMMERCE.  It may only attempt to REGULATE ACTIVITY.

"What just happened in Florida was 100% partisan."

No, dear. Partisan would be the way to describe Steeh and Moon's ruling, as would "activist."  Just to make sure you understand, let's review:

"I must conclude that the INDIVIDUAL MANDATE and the REMAINING PROVISIONS are all inextricably bound together in purpose and must stand or fall as a single unit. The entire act must be declared void." - Judge Roger Vinson

Liberals are incensed by Vinson' ruling on severability the determination, as to whether the individual mandate is so central to the law as to make the Act unrecognisable and unenforceable without it.  But here, Liberals have only the Administration and the Democratic Congress to blame.  From the opinion (the defendants are Obama officials): 

  "Having determined that the individual mandate exceeds Congress' power under the Commerce Clause, and cannot be saved by the application of the Necessary & Proper Clause, the next question is whether the individual is it severable from the remainder of the Act.  In considering this issue, I note that the defendants have acknowledged that the individual mandate and the Act's health insurance reforms, including the guaranteed issue and community rating, will rise or fall together, as these reforms "cannot be severed from the [individual mandate.]"

As I have repeatedly said, the lack of a severability clause would almost certainly void the entire law. In a few cases, the Court has culled only the offending sections; HOWEVER, that is only done for NON-ESSENTIAL or ANCILLARY matters. As the Justice Department repeatedly argued in ALL FOUR CASES, THE INDIVIDUAL MANDATE IS ***ESSENTIAL***. Because the individual mandate is unconstitutional and Harry Reid drafted a sub-standard bill lacking a boilerplate severability clause, Obamacare is now on life support and, eventually, the decision to pull the plug will be made by Kennedy.

Do you know what the CBO told Hillary and Congress about the individual mandate in 1994?

"A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government." - CBO

http://www.cbo.gov/ftpdocs/48xx/doc4816/doc38.pdf

Do you know that Obama was AGAINST the individual mandate before he was for it?

"If a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house,’” - Barack Obama

That's what I call being hoisted on one's petard.

"All states filing were Republican-run"

Untrue. Wisconsin, Washington, Nevada, Colorado, Michigan, etc, are blue states. At least one of the Attorneys General is a Democrat. Virginia is a purple state and has already won its case at the District level.

"... and the judge was a Ronald Reagan appointee."

OMFG!!! Did I hear you say that, even though you want your gub'ment healthcare and liked the Moon and Steeh rulings, you are unwilling to overlook ideology, partisanship, and venue shopping in favourable cases? Of course not.

Hudson: Bush appointment. Struck individual mandate.

Vinson: Reagan appointment. Struck the entire law.

Steeh: Clinton appointment. Upheld Obamacare.

Moon: Clinton appointment. Upheld Obamacare.

Can you spell "hypocrite"? I bet you can...

"they did some good venue shopping on this one"

Attorneys always file in the most accommodating venue, BUT EACH FEDERAL DISTRICT AND APPELLATE COURT HAS RULES AS TO ASSIGNMENT. Some use a lottery. The Northern District of Florida has Democrats on the bench now. Any one of them could have been assigned the case.

"'Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive." - Judge Vinson

Now, if you can name ONE example of where the Federal government has EVER mandated individuals purchase a good/service or enter into a contract with a third party AS A CONDITION OF GOOD CITIZENSHIP, then I may be willing to reconsider the precedent through the prism of that mandate.

First, please don't raise the specious auto insurance analogy (state issue, priced to risk, drives, mandatory collision, etc.). It is inapplicable and a state issue even though a strong argument could be made that the use of the interstate by uninsured drivers COULD affects interstate commerce more than opting not to purchase insurance.

Secondly, do not raise the Militia Act of 1792. The government did not mandate white men between the ages of 18 and 44 purchase guns.

"The Social Security program plays an important part in providing for families, children, and older persons in times of stress. But it cannot remain static. Changes in our population, in our working habits, and in our standard of living require constant revision."

-- John F. Kennedy, June 30, 1961


Fact: In 2009, the Federal government collected 2.1 trillion dollars in taxes.

Fact: In 2009, the Federal government spent 3.52 trillion dollars.

Fact: In 2009, the Federal government spent 678 billion dollars on Social Security.

Fact: In 2009, the Federal government spent 676 billion dollars on Medicare.

Fact: In 2009, 38.47% of the entire budget went to Social Security and Medicare and the two programmes consumed 64.48% of all Federal tax revenues.

Fact: The 2009 Social Security and Medicare Trustees Reports show the combined unfunded liability of these two programmes has reached nearly 107 trillion dollars in today's dollars and Laurence Kotlikoff, a well-known professor of economics at Boston University, puts the real figure over 200 trillion dollars!

Fact: Beginning 01.01.11, nearly 10,000 Americans each day will become eligible for Social Security and Medicare benefits.

Fact: 78 million Baby Boomers (1/3rd of the population) will retire within the next 19 years.

Fact: Consider a 65 year-old man, who retired in 2010 and had earned an average wage 43,100 dollars. Over his expected lifetime, he will receive an inflation-adjusted 417,000 dollars in Social Security and Medicare benefits compared to taxes paid of 345,000 dollars, estimates an Urban Institute study.

Projection: By 2020, every penny in tax revenues taken in by the US Treasury will be consumed by Social Security, Medicare, Medicaid, and debt service, the latter of which will amount to 1 trillion dollars alone.

Projection: When today's college students reach retirement (about 2054), Social Security alone will require a 16.6% payroll tax, one-third greater than today's rate, according to the non-partisan Peterson-Pew Commission on Budget Reform.

Fact: When Medicare Part A is included, the payroll tax burden will rise to 25.7% - more than one of every four dollars workers will earn that year.

Projection: If Medicare Part B (physician services) and Part D are included, the total Social Security/Medicare burden will climb to 37% of payroll by 2054 - one in three dollars of taxable payroll, and twice the size of today's payroll tax burden, according to the non-partisan Peterson-Pew Commission on Budget Reform!

Projection: More than one-third of the wages workers earn in 2054 will need to be committed to pay benefits promised under current law. That is before any bridges or highways are built and before any teachers' or police officers' salaries are paid.

Projection: By 2030, about the midpoint of the baby boomer retirement years, the Medicare will require nearly half of all income tax dollars, according to the non-partisan Peterson-Pew Commission on Budget Reform.

Projection: By 2060, Social Security and Medicare will require nearly three out of four income tax dollars.

Fact: On average, every year since 1970, Medicare and Medicaid spending per beneficiary has grown 2.5% points faster than per capita GDP.

Fact: In 1966, the House Ways and Means Committee projected that the total amount spent on Medicare in 1990 would be 12 billion dollars. Actual expenditures were 107 BILLION DOLLARS.

Projection: By 2052, Medicare spending alone will consume nearly the entire federal budget.

Fact: The CBO also found that if federal income tax rates are adjusted to allow the government to continue its current level of activity and balance its budget, the lowest marginal income tax rate of 10% would have to rise to 26%.

Fact: The CBO also found that if federal income tax rates are adjusted to allow the government to continue its current level of activity and balance its budget, the 25% marginal tax rate would increase to 66%.

Fact: The CBO also found that if federal income tax rates are adjusted to allow the government to continue its current level of activity and balance its budget, the current highest marginal tax rate on 250,000 dollars (35%) would rise to 92%!

Fact: If you raised taxes to 90% on the wealthiest Americans, you would still not be able to eliminate the budget deficit.

Fact: The federal government spends about 6.85 million dollars per minute.

Fact: Bush added 4,901,104,747,205.59 dollars to the national debt (including off-budget items) or spent 1,677,311,686.24 dollars per day.

Fact: As of 01.06.11, Obama added to national debt: 3,387,171,994,381.33 dollars or spent 4,730,687,142.99 dollars per day.

Projection: According to the IMF, US public debt will equal 100% of GDP in 2015.

Fact:  Social Security, Medicare and Medicaid are unsustainable.  It will take a country of rational grown-ups to understand that very hard choices must be made to address what will be the death knell of the United States, if ignored.

I could be wrong. Maybe, Santa Clause, the Sky Pixie, Tinkerbell, and the Easter Bunny will bring universal health care, universal education through grad school, universal housing, minimum income guarantees, high-speed rail from Bumfu.ckus, Alaska to Thongsareus, Florida, 100% green energy, "renewable" meat (Don't ask me! I have a legal background, not a scientific or governmental bio. To me, meat by definition is not renewable), an Aishwarya Rai for every straight man, Cristiano Ronaldos in every Cougar's bed, a Ricky Martin for every gay man, a Portia de Rossi for every lesbian, fully-electric Maybachs in every garage, David Beckhams on every kid's soccer field, Anthony Bourdains in every kitchen with geese that can continue to lay golden eggs even after the pot, silver bullet diet pills that melt 2 stone off overnight, and a closet-full of Chanel and Christian Louboutins for every fashionista in the morning, but I doubt it.

As Sir Alan Greenspan said before the Senate Budget Committee on April 21, 2005, “I fear that we may have already committed more physical resources to the baby boom generation in its retirement years than our economy has the capacity to deliver…[Regarding Social Security and Medicare], I do not see how we can avoid significant curtailment of the benefits currently promised.”

Our betters in government have pinned the constitutionality of Obamacare on the Commerce Clause. No case law exists that supports the notion that Congress, through the Tax Clause, the Commerce Clause or Necessary and Proper Clause, can regulate INactivity. 

When Obamacare was being debated, its advocates—including the president—sternly insisted that the mandate was not a tax.   In one memorable exchange, President Obama arrogantly chastised George Stephanopoulous for calling the fine assessed for failing to purchase health insurance pursuant to the individual mandate a “tax.” FN1 “George, the fact that you looked up Merriam's Dictionary, the definition of tax increase, indicates to me that you're stretching a little bit right now,” the president lectured, “Otherwise, you wouldn't have gone to the dictionary to check on the definition… My critics say everything is a tax increase.  My critics say that I'm taking over every sector of the economy.  You know that. Look, we can have a legitimate debate about whether or not we're going to have an individual mandate or not, but... I absolutely reject that notion (that the mandate penalty is a tax).”  

Now, the government wants the I.R.C. Section 5000 - the health care penalty - penalty to be a tax.  It argues that the "penalty" is a mere excise tax levied by the Congress of the United States under its broad power of taxation conferred by Article I, Section 8 of the Constitution.  According to Bouvier's Law Dictionary, a tax is a pecuniary burden imposed for the support of the government.  The enforced proportional contributions of persons and property levied by the authority of the state for the support of the government and for all public needs. FN1

The labeling of an exaction as a tax by Congress is not determinative of its character for all purposes. In New Jersey v. Anderson, 203 U.S. 483 (1906), the Court held that the name given to an exaction by the state legislature is not conclusive.   The Court, in City of New York v. Feiring, 313 U.S. 283 (1941), established a test to be utilised in making the determination of whether an assessment is a tax or a penalty has been described as a four-part test incorporating the following criteria: (1) an involuntary pecuniary burden, regardless of name, laid upon individuals or property; (2) imposed by, or under authority of the legislature; (3) for public purposes, including the purposes of defraying expenses of government or undertakings authorised by it; (4) under the police or taxing power of the state.  As the Court noted in a somewhat different context, "a tax is an enforced contribution to provide for the support of the government; a penalty...is an exaction imposed by statute imposed for an unlawful act."  United States v. La Franca, 282 U.S. 568, 571 (1931).  FN2

As the Court explained as recently as 1996 in United States v. Reorganized CF&I Fabricators of Utah, Inc., et al., 518 U.S. 213 (1996) distinguishing between taxes and penalties, "a tax is a pecuniary burden laid upon individuals or property for the purpose of supporting the government."  In contrast, the Court went on to say that, "if the concept of penalty means anything, it means punishment for an unlawful act or omission, and a punishment for an unlawful omission."  The Court could not have been more clear in enunciating the difference between a tax and a penalty.  It would be very difficult to arise at an example of a penalty than the fine imposed on Americans for failing to purchase mandated and government-approved health insurance. 

To be a constitutional tax, a levy must be an excise tax, an income tax, or a proportional capitation tax.  The penalty is none of these.  An excise tax may be defined broadly as an inland tax (as opposed to a customs duty, etc.) on the production for sale, or sale, of specific goods, or narrowly as a tax on a good produced for sale, or sold, within the country.  An example would be a sales or VAT tax.  An income tax is based on, obviously, income.  It is not assessed based on activity or inactivity.   Finally, it is not a proportional capitation tax, which is an equal tax on all individuals.  A poll tax, for example, is a proportional capitation tax.  Even if the penalty was a tax, it would still violate the Constitution Article I, Section 9 because it would be an unapportioned capitation tax. FN3

Despite being labeled an excise tax by Congress, the penalty is unlike any existing excise tax because it applies to the failure to act by an individual. Existing failure-to-act excise taxes differ because they apply to entities which have chosen to partake in particular activities. The provision thus fails the historic requirements of an excise tax, namely that it apply to an activity, transaction, or the use of property. The tax also fails the traditional "pass-on" nature of excise taxes. If the Court were to approve it as a uniform excise tax, the direct tax apportionment requirement would be eviscerated. FN4

The Commerce Clause has been coupled with the Necessary and Proper Clause to provide a constitutional basis for a wide variety of Federal laws.  "The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." - Article I, Section 8, Clause 18.  Just because Congress has the power to enact measures that are necessary and proper to the execution of its power to regulate commerce – in the case of Obamacare, health care markets – that does not mean that Congress has the power to do anything and everything that, on the margin, facilitates or makes more efficient other federally enacted regulatory measures.  This argument is no less untenable if one takes seriously the notion that there are judicially enforceable limits on the federal government’s enumerated powers. FN3

In McCulloch v. Maryland, 17 U.S. 316 (1819), the Court held that, while the Constitution did not explicitly give permission to create a federal bank, it had the implied power to do so under the Necessary and Proper Clause in order to realise or fulfill its express taxing and spending powers. This fundamental case established the following two principles:

1. The Constitution grants to Congress implied powers for implementing the Constitution's express powers, in order to create a functional national government.

2. State action may not impede valid constitutional exercises of power by the Federal government.

"We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional," C.J. John Marshall, writing for the majority in McCulloch.

McCulloch does not stand for the proposition that Congress has plenary power over citizens and the several states nor has its powers been granted to a body in absolute terms, with no review of, or limitations upon, the exercise of the power. "Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land." McCulloch, supra.

In Lambert v. Yellowley, 272 U.S. 581 (1926, the Court upheld a law restricting medicinal use of alcohol as a necessary and proper exercise of power under the Eighteenth Amendment establishing Prohibition in the United States.  The Federal government was empowered to act against the possession or consumption of alcohol.  The law was both necessary and proper to carry out its powers authorised under the Eighteenth Amendment.  On the other hand, in New York v. United States, 505 U.S. 144 (1992), the Court recognised that it was proper for Congress to address the problem of what to do with radioactive waste and that this national issue was complicated by the political reluctance of the states to deal with the problem individually; however, it ruled that the "take title" incentive of the Low-Level Radioactive Waste Policy Amendments Act of 1985 was an attempt to "commandeer" the state governments by directly compelling them to participate in the federal regulatory program. The federal government "crossed the line distinguishing encouragement from coercion." The distinction was that, with respect to the "take title" provision, the States had to choose between conforming to federal regulations or taking title to the waste. Since Congress cannot directly force States to legislate according to their scheme, and since Congress likewise cannot force States to take title to radioactive waste, Justice O'Connor, writing for the majority, reasoned that Congress cannot force States to choose between the two. Such coercion would be counter to the federalist structure of government, in which a "core of state sovereignty" is enshrined in the Tenth Amendment.  FN4

With the challenges to the individual mandate, however, Congress is explicitly asserting that the individual mandate is “necessary and proper” to execute its power under the Commerce Clause. Moreover, the argument for “necessity” is reasonably straight-forward: it is necessary to compel all uninsured persons into the insurance pool to pay for the increased costs being imposed on insurance companies by the Act. Under the Court’s normal deferential approach, finding “necessity” won’t be hard.  FN2

The problem with the mandate is whether it is a “proper” means to achieve a constitutional end. The Court has previously held that mandating state legislatures, New York v. United States, 505 U.S. 144 (1992) and executive officials, Printz v. United States, 521 U.S. 898 (1997.) is an “improper” commandeering of states and therefore violates the Tenth Amendment’s reservation of powers “to the states.”  FN3

It is not contestible that the Constitution established a system of "dual sovereignty." Gregory v. Ashcroft, 501 U. S. 452, 457 (1991); Tafflin v. Levitt, 493 U. S. 455, 458 (1990). Although the States surrendered many of their powers to the new Federal Government, they retained "a residuary and inviolable sovereignty," The Federalist No. 39, at 245 (J. Madison). This is reflected throughout the Constitution's text, Lane County v. Oregon, 7 Wall. 71, 76 (1869); Texas v. White, 7 Wall. 700, 725 (1869), including (to mention only a few examples) the prohibition on any involuntary reduction or combination of a State's territory, Art. IV, § 3; the Judicial Power Clause, Art. III, § 2, and the Privileges and Immunities Clause, Art. IV, § 2, which speak of the "Citizens" of the States; the amendment provision, Article V, which requires the votes of three-fourths of the States to amend the Constitution; and the Guarantee Clause, Art. IV, § 4, which "presupposes the continued existence of the states and . . . those means and instrumentalities which are the creation of their sovereign and reserved rights," Helvering v. Gerhardt, 304 U. S. 405, 414-415 (1938). Residual state sovereignty was also implicit, of course, in the Constitution's conferral upon Congress of not all governmental powers, but only discrete, enumerated ones, Art. I, § 8, which implication was rendered express by the Tenth Amendment's assertion that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."  FN4

In Printz, state officials objected to being pressed into federal service, and contended that congressional action compelling state officers to execute federal laws was unconstitutional. FN6 The Court held that the Brady Act purported to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme. FN4  The Court overturned the portions of the Brady Act that attempted to dictate to and use the labour of state officials as an unconstitutional commandeering.

The challenges to the individual mandate raise the issue of whether mandating all persons to enter into a contract with a private company is “improper” commandeering of the people and therefore violates the Tenth Amendment’s reservation of powers “to the people.” FN5  Because such a commandeering has never been previously been attempted, the Court will have to address whether it is an “appropriate”, McCulloch v. Maryland, 17 U.S. 316 (1819), means to achieving an enumerated end, however “necessary” it may be. Deciding this question return the Court to the scope of the Commerce Clause.

In Comstock, No. 08-1224 (2010), nothing about the incarceration of sexually dangerous persons was alleged to be an “improper” means of pursuing an enumerated end. The issue was whether or not the statute was enacted pursuant to an enumerated power. The majority held it was–all the enumerated powers for which the original criminal incarceration was the means–while the dissent disagreed.  One encouraging aspect of the case was Justice Kennedy’s denial that the Commerce Clause required only the sort of rational basis scrutiny described in the Due Process case of Lee Optical. But even this has no bearing on the challenge to the individual mandate as the mandate would likely satisfy even heightened scrutiny for necessity or means-ends fit. Once again, the issue is not necessity, it is propriety. In this regard, it is very encouraging to see Justice Scalia joining Justice Thomas’s dissenting opinion in which Justice Thomas reiterates Justice Scalia’s characterization in Printz , supra, of the Necessary and Proper Clause as “the last, best hope of those who defend ultra vires congressional action." FN5

Identifying the line to distinguish between permissible and impermissible exercises of the federal government’s power under the Necessary and Proper Clause is the task at hand, and existing precedent is only of limited use.  The Court’s decisions, from McCulloch to Comstock, only go so far in addressing this question.  They clearly confirm that Congress can take some steps beyond the scopes of the other enumerated powers, but also reaffirm that federal power is limited, and none of the relevant cases stand for the proposition that it is for Congress, and Congress alone, to determine what may be enacted as necessary and proper to the execution of other constitutional measures. FN5

This is why the individual mandate presents a difficult question.  It is beyond dispute that, on the margin, requiring all Americans to purchase health care will reduce the costs of seeking to expand coverage by, for instance, prohibiting health insurers from denying coverage for preexisting conditions.  The same can be said for any measure, however, that increases the participation of relatively healthy people in health insurance pools or that increases the average health of those that are insured.  So unless one wants to adopt the view that any provision adopted as part of some broader legislative scheme is necessary and proper just because Congress says it is so long as there is some plausible justification for it’s relation to the broader scheme, one needs to identify some alternative limit.  This is something the individual mandate’s defenders have yet to do.  FN7

How the Court will decide will depend on whether they take the Wickard v. Filburn, 317 U.S. 111 (1942), and Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005) approach to the Commerce Clause or the United States v. Alfonso Lopez, Jr., 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000) route.

The Court recognised in identified the three broad categories of activity that Congress could regulate under the Commerce Clause, United States v. Alfonso Lopez, Jr.,:

* the channels of interstate commerce,

* the instrumentalities of interstate commerce, or persons or things in interstate commerce, and

* activities that substantially affect or substantially relate to interstate commerce

The failure to purchase health insurance is an INactivity. It doesn't affect commerce nor is it economic in nature. The Violence Against Women Act, United States v. Morrison, 529 U.S. 598 (2000), Gun-Free School Zones Act of 1990, United States v. Alfonso Lopez, Jr., 514 U.S. 549 (1995), and The Child Pornography Prevention Act of 1996, Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) were all struck down because Congress had attempted to use the Commerce Clause to regulate inactivity and activity not economic in nature.

As the CBO and CRS told Hillary Clinton in 1994, the individual mandate is unprecedented and unconstitutional. "A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action," the CBO report stated. FN6  "The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government."  Never in the history of the United States had the Federal government mandated American citizens purchase a governmentally-approved good or service as a condition of good citizenship.

In the course of dismissing the plaintiff’s Commerce Clause challenge, the Judge Steeh has vindicated an important element of all such pending challenges: this claim of power by the government is without any precedent in experience or in law. In Judge Steeh’s words:

“The Court has never needed to address the activity/inactivity distinction advanced by plaintiffs because in every Commerce Clause case presented thus far, there has been some sort of activity. In this regard, the Health Care Reform Act arguably presents an issue of first impression.”

He's right! Never before in American history has the Federal Government imposed an economic mandate commanding that persons engage in economic activity. Given that there is no current Supreme Court doctrine recognising such power in Congress, the appropriate stance of a district court judge is to follow Court precedent and deny this claim of power until the Court decides in due course to expand its doctrine.

Instead, Steeh accepted the government’s expansion of Congressional power beyond regulating economic activity to regulating economic “decisions:

“While plaintiffs describe the Commerce Clause power as reaching economic activity, the government’s characterisation of the Commerce Clause reaching economic decisions is more accurate.”

But this was not “plaintiff’s description.” It was how the Supreme Court itself described its own doctrine in each and every Commerce Clause case that allowed Congress to reach wholly intrastate activity because it was necessary and proper (N&P Clause) to the regulation of interstate commerce.

By inventing a new “economic decisions” doctrine FN5, Steeh has gone beyond the Commerce and Necessary and Proper Clause doctrines established by the Supreme Court. He made it up. He disregarded every single Supreme Court case on the Commerce Clause.

Only the Supreme Court is authorised to expand its own interpretation of the scope of Congressional power.

Of course, judges in other challenges are having their opportunity to opine on whether Congress has the power to regulate any “economic decision” that may substantially affect interstate commerce. The “economic decision” not to buy a car, the “economic decision” not to buy or sell your home, or even the “economic decision” not to have a physical exam. For make no mistake, if the Court ever accepts the government’s “economic decision” theory, then there is nothing it cannot mandate in the future in the name of regulating “commerce . . . among the several states.  FN7

Allowing the federal government to force citizens to buy a private product would “invite unbridled exercise of federal police powers’’ and Congress will then have the general police power that both the Constitution and the Supreme Court have always denied it.

Finally, let’s slay this silly auto insurance analogy that “constitutional scholars” in DC continue to trot out at every opportunity. This is such a bad argument that it staggers the imagination why the administration would *still* be making it. In fact, I am embarrassed that these people even think that they have the knowledge and experience to make life and death decisions over American citizens.

The Federal government CANNOT force you to purchase auto insurance. Driving is a privilege not a right and the ability of states to regulate it is very broad. (For those that want to claim that driving is a right, the Court has been very clear that states can regulate driving and, as long as the state presents a compelling interest in encumbering driving, whether right or privilege, it is acting within its constitutional powers.  See:  Bell v. Burson, 182 F.2d 46 (1971), Hendrick v. Maryland, 235 U.S. 610, 622; Kane v. New Jersey, 242 U.S. 160, 167, Packard v. Banton, 264 U.S. 140 (1924)).  States impose the insurance requirement, not the Federal government because states licence drivers and vehicles. If you are blind or a user of public transportation or just refuse to drive, a state is not going to force you to purchase auto insurance. Drivers carry required insurance to cover *damage done to others,* not themselves. Driving is, after all, a voluntary activity conducted on public property (roads); there is no requirement for licencing or insurance for those who drive only on their private property. People who don’t drive on public roads aren’t required to buy a licence or the insurance.

There are additional problems with this analogy as well. Those who *do* have auto insurance only file claims when significant damage occurs. Auto insurance doesn’t pay for routine maintenance, like oil changes, lube jobs, and tire rotation. That’s why auto insurance is relatively affordable.

Unlike Obamacare, auto insurance is priced to risk. If a driver lives in a high-crime area, then the premiums will rise to cover the risks associated with theft. If a driver has moving violations and accident, his premiums will go up, or in some cases, the insurer will cancel the policy. Other risk factors are factored into price, as well. Due to their propensity for causing losses, the youngest and oldest drivers pay more. Those who drive well and present a lower risk get rewarded with lower premiums. Right now, the federal government is preventing insurers in some instances from risk-pricing health insurance to impose government-approved *fairness.* Or, since the Obama administration loves the auto insurance analogy, your premiums will rise to compensate for the 18 year-old kid with 6 moving vehicle violations and 2 totaled automobiles. We will all pay more because the incentives for good behaviour, defencive driving, and reasonable maintenance have been removed.

Finally, can we please direct the extinguisher and put out the fire insurance analogy? If there is any analogy worse than the auto insurance dog, it is fire insurance laugher. If we forced insurers to write comprehensive policies on burning homes, we would have no insurers left in the market. In fact, IT IS NO LONGER INSURANCE. IT IS A COMPENSATION POLICY. Obama, Holder and Sebelius want health insurers, however, to do the same thing — and need the mandate to force all of us to assume that risk through the higher premiums that subsidise it. And, by the way, the government is doing *exactly* what they derogate — forcing insurers to write policies after the accident/fire/illness. Of course, this is what they want.

Now, I loathe government-run or even government-directed health care. I hate the NHS and would ONLY wish it on my worst enemies. If we get stuck with this lemon a/k/a Obamacare, I have only one, small favour to ask of you socialists, please put in a good word for me. I want a seat on the Comparative Effectiveness Board. You won’t have to worry about paying or even insuring me. I’ll take care of everything. Just, please, give me that seat because I would love to ration you nuts right out of existence!

FN1 : Barnett, Randy, http://www.cato.org/pub_display.php?pub_id=10942

FN2:  Cassidy v. Dumle, 983 F.2d 161 (1992)

FN3:  Harrison v. Merrimac, No. 05-1010

FN4:  The "Elastic" Clause - The Necessary and Proper Clause, http://emp.byui.edu/MarrottR/101_ElasticClause.pdf

FN5:  Preliminary Thoughts on Comstock, Constitutional Decapitation and Health Care, http://papehttp://volokh.com/2010/05/17/preliminary-thoughts-on-comstock/rs.ssrn.com/sol3/papers.cfm?abstract_id=1589190

FN6: The 1.5 Trillion Dollar Fraud, http://www.cato.org/pub_display.php?pub_id=10944

FN7:  Further Thoughts on the Virginia Health Care Ruling and the Necessary and Proper Clause, http://volokh.com/2010/12/13/further-thoughts-on-the-virginia-health-care-ruling-and-the-necessary-and-proper-clause/

 FN8: http://volokh.com/author/randy/page/2/

FN9:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=410542&http://www.bing.com/search?FORM=DMDTDF&PC=VEOH&q=randy+barnett+%26+necessary+and+proper

FN10:  White House Concedes Mandate is Unconstitutional, http://volokh.com/author/randy/page/2/

"And as you have noted previously, the lack of a severability clause will sink the whole thing. I love it."

Ordinarily, the lack of a severability clause will cause a contract or law to fall. The one caveat is that the Court, in Free Enterprise Fund v. Public Company Accounting Oversight Board, did strike down a small and legally insignificant clause in SarBox. The Court could "possibly" do the same with Obamacare, but I doubt it. The individual mandate is CRITICAL to Obamacare.

Another thing, two other Federal judges, Steeh in Thomas More Law Center, et al, v. Barack Hussein Obama, Case No. 10-CV-11156; Judge Moon, Liberty University, et al. v. Timothy Geithner, et al, Case No.6:10-cv-00015-nkm) ruled the mandate was constitutional, but they did not decide on the merits. They granted the government's FRCP 12(b)(6) Motions to Dismiss and did not rule on the merits.

Both judges recognised that this issue - forcing Americans to purchase a good or service from a third party or face punishment - was one of first impression. They upheld the mandate AND ALTERED THE STANDARD SET BY THE COURT AND MADE UP THEIR OWN. Instead of applying the test in the long line of Commerce Clause cases, Wickard v. Filburn, 317 U.S. 111 (1942), Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005), United States v. Alfonso Lopez, Jr., 514 U.S. 549 (1995), United States v. Morrison, 529 U.S. 598 (2000), they spurned Supreme Court precedent and invented some totalitarian bullshiit "economic decisions" crap. Steeh rejected existing SCOTUS doctrine because of his claim that this was a case “of first impression” meaning that this is a new field and he believes that he has the right to make law.

The Court's test is "Economic Activity," which to be brief, means that there MUST be an economic action affecting interstate commerce.
The two judges created a new standard, "Economic Decisions," which would allow the federal government to REGULATE ECONOMIC INACTIVITY. The government cannot FORCE citizens to purchase products as a condition of good citizenship. Under the approach created by the first two judges, " the Commerce Clause would cover virtually any choice of any kind.and a decision to do any thing is necessarily a decision not to use the same time and effort to engage in "economic activity." Thomas More Law Center, supra.

Steeh, Thomas More Law Center, et al, v. Barack Hussein Obama:

Created new law and disregarded decades of precedent to dismiss on a preemptory challenge. He used his own legal creation to hold that the plaintiffs failed to state a cause of action upon which relief could be granted. DID NOT HEAR THE MERITS OF THE CASE.

Moon, Liberty University, et al. v. Timothy Geithner, et al:

Essentially the same as Steeh. Plaintiffs failed to state a cause of action upon which relief could be granted. DID NOT HEAR THE MERITS OF THE CASE.

Hudson, Commonwealth of Virginia, et al v. Kathleen Sebelius:

Government lost at Rule 12(b)(6) hearing and the Court said that the case could proceed. He used precedent. He did not create his own law, sua sponte.

The Judge rejected the position of the government that the mandate was an exercise of taxing power:

It is clear from the text of Section 1501 that the underlying regulatory scheme was conceived as an exercise of Commerce Clause powers. This is supported by specific factual findings purporting to demonstrate the effect of the health care scheme on interstate commerce. In order for the noncompliance penalty component to survive constitutional challenge, it must serve to effectuate a valid exercise of an enumerated power-here the Commerce Clause. [at p. 36]

The Judge found that there was no legitimate Commerce Clause or General Welfare Clause justification for the mandate:

A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce or role in a global regulatory scheme.

The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers. At its core, this dispute is not simply about regulating the business of insurance-or crafting a scheme of universal health insurance coverage-it's about an individual's right to choose to participate. Article I, Section 8 of the Constitution confers upon Congress only discrete enumerated governmental powers. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people. See U.S. Canst. amend. X; Printz v. United States, 521 U.S. 898, 919, 117 S. Ct. 2365, 2376-77 (1997). [at p. 37]

On careful review, this Court must conclude that Section 1501 of the Patient Protection and Affordable Care Act-specifically the Minimum Essential Coverage Provision-exceeds the constitutional boundaries of congressional power. [at p. 38]

The Judge also ruled that the Mandate could be severed from unrelated provisions of the law. [at p. 40]The Judge declined, however, to issue an injunction, stating that there was no emergency since the mandate did not take effect until 2013 at the earliest. [at pp. 41-42]

Decision here:

http://www.scribd.com/doc/45214657/Cuccinelli-v-Sebelius-Memorandum-Granting-Motion-for-Summary-Judgment-12-13-2010

Case tried on the merits using established precedent.

Many presume that the Nazis were a cult with a weird variation of Christianity. Contemporary sources put the truth to that lie. Books were written during the very years in which Nazism came to power by Christian, Jewish, atheist, and Marxist writers clearly demonstrate the position of the Nazi Party when it came to religion.

Christianity had declined severely in Germany at the time the Nazis came to power, which is one of the main reasons the Nazis were able to come to power. In his book, "The Dictators," Richard Overy states that in the decades preceding the First World War Germany was becoming increasingly secular, and that after that war, from 1918 to 1931, 2.4 million Evangelical Christians formally renounced their faith as well as almost half a million Catholics. In Prussia, only 21% of the population took communion and in Hamburg only five percent of the population took communion.

Before Hitler, German religious leaders were publicly condemning the rise of moral relativism and decline of traditional religious values. Weimar Germany, for example, largely had abandoned Christianity and increasingly was embracing hedonism, Marxism and paganism. There, decline of Christianity in Germany led directly to the rise of Nazism. In his 1937 book, "The Third Reich," Professor Henri Lichtenberger describes the religious life of the Weimar Republic as a place in which the large cities were "spiritual cemeteries" with almost no believers at all, except for those who were members of the clergy. The middle class went through the motions, but lacked all living faith. The workers, influenced by socialism, were suspicious of the church. Even in the countryside, preachers had little influence on the people.

In the 1938 book, "The War Against God," by Sidney Dark and R.S. Essex, describes pre-Nazi antipathy toward Christianity by noting that churches had lost all their vitality and that their services were lifeless. Mower, in his 1938 book, "Germany Puts the Clock Back," wrote that by 1920, God and Christianity had been in steady decline, a process that had begun in 1860. Mower talks about a culture not so much casual as vicious about sexuality. He writes of art sickened into atonal music, about the absence of any sense of sin, about entire graduating classes in high school turning up for birth control devices, and about the commonplace occurrence of abortion. This hostility or indifference toward Christianity in Europe, and especially in Germany, led naturally to a profound anti-Christian sentiment in Nazi Germany. Nazis, more than most Germans, were indifferent or hostile to Christianity.

Hitler originally appeared to just ignore Christianity. Dark and Essex write in their 1938 book that "Mein Kampf" has few passages which in any way refer to religion, none that refer to Hitler's own personal religion (instead, he likened Christianity to Bolshevism), or to the teaching of the Bible, nor any branch of Christian teaching. Jacob Marcus in his 1934 book by the Union of American Hebrew Congregations notes that "Though his parents were both Catholics, Hitler himself has apparently no interest in any organised religion." Marcus also has an entire section in his book about Nazi "anti-Christian anti-Semitism." In 1938, Rauschning wrote: "The purpose of the National Socialism fight against Christianity is the same: the total destruction of the last and most deep-rooted support of the forces of conservation. The destruction of the spirit of Christianity in Germany is certainly more far-reaching than appears on the surface...Such vestiges of living Christianity as remain are steadily degenerating in the direction of a superficial and unthinking deism" and that ultimate goal as "...the total abolition of Christianity, which is not a mere philosophical fad of the National Socialists but an iron necessity of their system."

Within a year of taking power, Hitler was saying: "Christianity was incapable of uniting the Germans, and that only an entirely new world-theory was capable of doing so." Also within a year of the Nazis taking power, "The Twenty-Five Theses of the German Religion," a conscious modeling of the twenty-five points of the Nazi program, was published in Germany. Thesis XV of that Nazi publication states: "The Ethic of the German Religion condemns all belief in inherited sin, as well as the Jewish-Christian teaching of a fallen world. Such a teaching is not only non-Germanic and non-German, it is immoral and nonreligious. Whoever preaches this menaces the morality of the people."

In February 1937 Hanns Kerrl, Minister of Religion in the Third Reich, said: "The question of the divinity of Christ is ridiculous and inessential. A new answer has arisen as to what Christ and Christianity are: Adolph Hitler." University Nazis in Keil wrote in 1935: "We Germans are heathens and want no more Jewish religion in our Germany. We no longer believe in the Holy Ghost; we believe in the Holy Blood."

Preaching from the pulpit against Rosenberg's racial theories was forbidden by the Nazis and Law 130 threatened penalties against any priest who preached "against the interest of the state." Göring ordered that the Hitler Gruss (the Hitler salute) was the only religious gesture allowed. Just as Nazi propaganda made odious caricatures of lecherous Jewish preying on young German maidens, Nazi propaganda made identical caricatures of lecherous priests preying on young German maidens.

In August 1935, the bishops of Germany presented at Fulda a pastoral letter warning of the Nazi "campaign of annihilation against Christianity" and a year after that Bishop Bornewasser publicly spoke about the Christian men and women who were persecuted by the Nazis because of their faith.

On November 4, 1936, the Nazis ordered the removal of crucifixes from schools in the Oldenburg area on the grounds that these were "symbols of superstition." This order was rescinded only after Nazis were faced with determined local opposition. Then, despite rescinding the Nazi prohibition of these "symbols of superstition," in December 1936, Nazi bureaucrats simply removed crucifixes anyway in Munsterland. When Christians replaced them in some schools, they were arrested by the Nazis. Nordland, a Nazi magazine, called the Sermon on the Mount "the first Bolshevist manifesto." The principle of the National Socialist state, Hitler told an audience in 1937, was "not in Christianity nor in social theory, but in the unified people's community," and the same year Himmler banned all Confessing Church seminaries and instruction and he closed all private religious schools two years later.

In 1937, Stephen H. Roberts wrote in his book, "The House That Hitler Built," that the hostility between Nazism and churches began as soon as the Nazis came to power, and that quickly became impossible to be a good Catholic and a good Nazi. Some Nazis were overtly and clearly anti-Christian. Others were simply silent. Hitler, however, did nothing to stop the drumbeat of pagan propaganda within the Nazi Party, which included Heinrich Himmler, Baldur von Schirach, Alfred Rosenberg, Dr. Frick and many others, some of whom formally renounced their Christianity. The Confessional groups of Christians --Protestants who had refused to join the "German Christian" movement -- sent Hitler a letter in May 1936 asking whether he intended to "de-Christianize the German people." The response was wholly unsatisfactory, with the Christian clergy believing that Hitler had accepted honors due only to God."

Nazis hated and mocked Christianity. Most particularly, Nazis loathed the ideas that faith, not race, was critical and that Christians had a duty to love all people, including Jews. Christian clergymen were harassed, dismissed, arrested, tortured and murdered for defending these beliefs. It is hard to see how less robust Christian faith would have made the lot of Jews easier in Nazi Germany. It is impossible not to see that, except for brave Christians, the lot of German Jews (some of whom escaped the Holocaust) would have been worse.

Dorothy Thompson wrote on October 17, 1938 that National Socialism, like Communism, was a secular religion and that until that was understood, then nothing about Nazism and Communism made sense. She then noted that both violated the First Commandment, "Thou shalt have no other gods before Me." Then Thompson states that this is why the most formidable opposition to both these totalitarianism movements came from people of faith; and that while it may be possible to unite Communism or National Socialism with some economic theory or political system or sociology, it is absolutely impossible to harmonise either with the Bible. She observes that those who have thrown their lot with Hitler in Germany were those without serious religious convictions, and that Hitler has found the only opponent he could not terrorize or bribe among the Christians of Germany.

The same year, Professor Micklem at Oxford noted that "All political questions are at bottom theological. The clash between National Socialism and the Christian church rests upon the incompatibility of two views of the world, two ‘anthropologies.' In National Socialism there are no ultimate, universal standards. Right is defined as that which accords with the demands of the people's souls.... The Church in Germany is of no mere ephemeral interest. It raises in an acute form an issue which both National Socialism and Bolshevism present to every country. What is to be the foundation of European civilization?"

The same book reveals -- surprise! -- that the pagan anti-Christian Nazi leader Alfred Rosenberg's movement "might easily ally itself with the anti-Christianity of Moscow." Of course, it did just that. Fodor, who personally knew Russian Bolsheviks and followed closely the Bolshevik Revolution as well as the National Socialist revolution and the Fascist regime, noted in his 1940 book that the Nazis surpassed all other totalitarian systems in its persecution of churches, finding even the Soviet Union less hateful toward Christianity than the Nazis, who persecuted not only Christians but Christianity itself.

In 1938 Hendrik Willem van Loon stated that Hitler has tried to deprive society of the only foundation on which true civilisation and world peace can be grounded, Christianity, and for that van Loon leaves Hitler to the judgment of God. Overy, in his book, "The Dictators," observes that Hitler's attitude toward religion and Christianity was identical to that of the Bolsheviks. The very same year, Erika Mann, in her book "School for Barbarians," wrote that the fanatic war of National Socialism against the Church is fought on so large a field that the contest results only in battles won by one side and then the other, but that one thing is clear: "the stake of the war is the souls of the children. Both sides are battling for their future." Mann notes that the three enemies constantly cited by Nazis were Judaism, Freemasonry and Christianity; and that the remedy proposed by the Nazis to solve the enemy of Christianity was to take Christian children, whose parents insisted on teaching them Christian virtues, away from their parents (much like the Bolsheviks would take Christian children away from their parents).

This is similar to what Pierre van Paassen wrote in his 1939 book, "Days of Our Lives," who says that Germany is farther on the road to dechristiansation than the Soviet Union and that in place of God, Nazis have placed the almighty state which demands everything from man. Also in 1939 Ernest Hambloch wrote that because the Roman Catholic Church had been opposing the Nazis as pagan, the Nazis accused the Vatican of being in league with Communism. The same year Ogg wrote in European Government and Politics that from the Nazi viewpoint Christianity was part of the common value systems which the Nazis most vigorously opposed, that the Nazis specifically objected to values of "a common European origin" and that Nazism opposed reason as a workable guide to social action."

Even the most superficial Christianity was rejected by many Nazi leaders and Nazi organizations. Karl Haushoffer, the mentor of many early Nazi leaders, preached non-Christian beliefs, and Nazi metaphysics included organisations like the Thule Society whose members greatly admired the Japanese Black Dragon Society. The Thule Society practiced occultism, alchemy and Islamic mysticism. Perhaps the best example of absolute repudiation of Christianity, even nominal Christianity contorted into something grotesquely different than any professed Christianity, comes from the mouth of Julius Streicher, a notorious defamer of Jews. He said that "It is only on one or two exceptional points that Christ and Hitler stand comparison, for Hitler is far too big a man to be compared with one so petty." Christ, to Nazis, was a nebbish. Hitler was their Christ.

The same book, which was published a few years after HaShoah by a respected Jewish organisation trying to understand the nature of Nazi evil notes: "A Nazi magazine commented on the Golden Rule in 1939: ‘This fundamental law of Christianity completely contradicts our moral conscience, contradicts above all our warrior-like nature peculiar to the soul of our race.' Children were taught to pray to Hitler instead of to God. Grace before meals given to poor children by the Nazi Welfare Committee ended: ‘For this food, my Fuehrer, my thanks I render.' Another official child's prayer ended: ‘My Fuehrer, by Fuehrer, my faith and my light, Heil my Fuehrer.'"

Alfred Rosenberg, Nazi theoretician, said that there was no place in the Third Reich for Christianity in any form. Christian ceremonies surrounding births, marriages, deaths and other solemnities ceased to be performed by Christian clergy. His ponderous tome, "The Myth of the Twentieth Century," not only called for banning crucifixes from churches but also from village streets, and also for banning medieval images of Christ as the Lamb of God."

In the training camps of the Nazi Party, it was repeatedly stated that National Socialism has three enemies: Judaism, Masonry and Christianity. Martin Bormann hated Christianity even more than most Nazi leaders. Goebbels frequently made fun of Christian morality. Nazis in general considered Christianity a "soul malady," "foreign" and "unnatural." Heinrich Himmler despised Christianity and members of the SS had to formally renounce their Christian faith and formally become agnostic in order to become a member of the Schutzstaffel.

Erich Ludendorff, the earliest and most important political figure in Germany to support the Nazis, said: "The Jews are not our enemies because of their race, but because one of their subtlest rabbis, that man called Saint Paul, distilled the poison of the Christ myth out of the life of the story of Jesus of Nazareth. The Jews are enemies of the Nordic race because they produced Christianity, which has been the poison that has destroyed the vitality of the Aryan people."

Matilde von Kemnitz, the wife of Ludendorff, promoted an unchristian neo-Teutonic cult that called, among other things, for the destruction of all churches and the creation of forest temples as places of sacrifice to pagan deities. Not only were Christians particularly hated by Nazis, but Jews were hated because Christianity came out of Judaism. Christianity emphatically repudiates racial theories, the right of the strong to dominate the weak, and other notions dear to Nazis.

Hambloch in 1939 wrote: "Modern democracy is the child of Christianity, and both were therefore anathema to Gobineau [the racial theorist who gave rise to much of Nazi racial "science."] Nietzsche proclaimed he was Antichrist. Gobineau was far more anti-social. He was anti-Christian." Christianity is perfect anti-Nazism and the Nazis knew it. Members of the Hitler Youth were forbidden to join church organisations and membership in the Hitler Youth was more or less compulsory. Hitler Youth meetings were deliberately scheduled to coincide with Sunday church services. Hitler Youth were taught to be rebellious against their parents, contemptuous of religion and to use crude and offensive language.

Lowenstein in 1941 wrote that in the Hitler Youth the neo-pagan cult began to fill the gap which was the result of a conscious erosion of Christianity. The Nazis even forbade parents to give their children Christian names and ordered babies instead to be given names like Dietrich, Otto or Siegfried. The teaching of Christianity by parents in the home was forbidden. Churches were not allowed to collect funds for charitable work.

The Nazis transferred Catholic clergy to Protestant areas and Protestant clergy to Catholic areas. Nazis smeared excrement on church altars and church doors, desecrated shrines, and threw statutes of saints into dung piles; and when synagogues were not available to attack and loot, churches were the target with Nazis yelling: "Down with Christians and Jews!" In many places, historic church feast days and holidays were banned and even the display of religious flags and banners was outlawed; often Nazis cordoned off areas necessary for church pilgrimages and offered free beer and sausages for secular events that deliberately coincided with church festivals.

These are just the tips of the iceberg of evidence showing the total hatred for Christianity held by the Nazis. It is also instructive to note that these same authors (and many others) observed that the only organised resistance to Nazism in Germany came from devout Christians.

Question Time With Mo:  Are Speech Codes Constitutional?


The Federal government and state governments are broadly forbidden by the First Amendment of the Constitution from restricting speech. See, e.g., Gitlow v. New York, 268 U.S. 652 (1925), De Jonge v. Oregon, 299 U.S. 353 (1937), Wolf v. Colorado, 338 U.S. 25 (1949), and Gideon v. Wainwright, 372 U.S. 335 (1963).  Generally speaking, the First Amendment prohibits governments from regulating the content of speech, subject to a few recognized exceptions such as defamation and incitement to imminent lawless action.  Even in cases where speech encourages illegal violence, instances of incitement qualify as criminal only if the threat of violence is imminent. This strict standard "prevents prosecution of many cases of incitement, including prosecution of those advocating violent opposition to the government, and those exhorting violence against racial, ethnic, or gender minorities." See, e.g., Yates v. United States, 354 U.S. 298 (1957), Brandenburg v. Ohio, 395 U.S. 444 (1969).

In the 1980s and 1990s, more than 350 public universities adopted "speech codes" regulating discriminatory speech by faculty and students. These codes have not fared well in the courts, where they have been frequently overturned as violations of the First Amendment. See, e.g., Doe v. Michigan, 721 F. Supp. 852 (1989), UWM Post v. Board of Regents of University of Wisconsin, 774 F. Supp. 1163 (E.D. Wis. 1991), Dambrot v. Central Michigan University, 839 F. Supp. 477 (E.D. Mich. 1993), aff'd, 55 F.3d 1177 (6th Cir. 1995), Corry v. Stanford, No. 740309 (Cal. Super. Ct. Feb. 27, 1995).

Governmental restrictions, including those imposed by an institution or entity receiving public monies, on constitutional rights that undergo strict scrutiny are most commonly, but not invariably found invalid.  Debate over the restriction of the nebulous definition of "hate speech" in public universities continues to resurface periodically with the adoption of anti-harassment codes covering discriminatory speech.  While the Court has refused to grant certiorari to any case involving speech codes and has allowed the rulings of the appellate courts to stand, the common position of the bar is that, eventually, the Court will rule on whether speech can be censored on campuses.  There are few other issues that aim straight at the heart of the Republic than the idea of parameters being placed on what constitutes permissible, protected speech and how those limits might be defined.  Broadly speaking, the Court has allowed restrictions where there exists speech that has a great possibility of inciting imminent lawless action, i.e., a riot.  Never has the Court restricted speech based on how words or expressions might affect the recipient of same.  Such a reconfiguration of how speech is determined to be legal based on the feelings of others will be a step toward the type of hate speech crime laws that have had an Orwellian effect on the people of Britain, Canada, and Europe.  As an aside, I ask you to familiarise yourself with the broad laws of those nations and imagine how they would play in the United States.  What would it mean to our political discourse bearing in mind that political speech, above all else, is the most critical to the continuance of the United States as a free society where the government serves at our pleasure?  Can you imagine being prosecuted for hate speech crimes because your scholarly work on, say, the demographic impact of Muslim immigrants in Michigan has offended a radical imam at a mosque in Dearborn?  Not only could it happen, it has in Toronto, Canada.

In order for a law or code restricting speech to be constitutional, it must survive strict scrutiny. Along with the lower standards of rational basis review and exacting or intermediate scrutiny, strict scrutiny is part of a hierarchy of standards employed by courts to weigh an asserted government interest against a constitutional right or principle that conflicts with the manner in which the interest is being pursued, United States v. Carolene Products Company, 304 U.S. 144 (1938). Strict scrutiny is applied based on the constitutional conflict at issue, regardless of whether a law or action of the Federal government, a state government, or a local municipality is at issue.  For a law or code restricting speech to survive strict scrutiny and be upheld as constitutional it must be 1) narrowly-tailored, 2) the state must also have a compelling governmental interest, and 3) the law or policy must be the least restrictive means for achieving that interest.

Strict scrutiny arises in two basic contexts: when a "fundamental" constitutional right is infringed, particularly those listed in the Bill of Rights and those the Court has deemed to be a fundamental right protected by the "liberty" or "due process" clause of the Fourteenth Amendment; or when the government action involves the use of a "suspect classification" such as race or, sometimes, national origin that may render it void under the Equal Protection Clause.  See Carolene, supra, at FN4.

Let's take each of the prongs and consider them in greater detail:

FIRSTLY, any restriction must be justified by a compelling governmental interest. While the Court has never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.  For an idea of what constitutes a bright-line test, see Miranda v. Arizona 384 U.S. 436 (1966), Goldberg v. Kelly, 397 U.S. 254 (1970), S.E.C. v. Chernery Corporation, 332 U.S. 194 (1947), Heckler v. Campbell, 461 U.S. 458 (1983), Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988), Sameena, Inc. v. U.S. Air Force, 147 F.3d 1148 9th Cir. (1998). 

SECONDLY, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (Overbreadth Doctrine) or fails to address essential aspects of the compelling interest (Under-Inclusive Doctrine), then the rule is not considered narrowly tailored. 

Overbreadth Doctrine.  A statute doing so is overly broad if, in proscribing unprotected speech, it also proscribes protected speech. Overbreadth is closely related to vagueness; if a prohibition is expressed in a way that is too unclear for a person to reasonably know whether or not their conduct falls within the law, then to avoid the risk of legal consequences they often stay far away from anything that could possibly fit the uncertain wording of the law. The law's effects are thereby far broader than intended or than the Constitution permits, and hence the law is overbroad.  The esteemed constitutional scholar, Lewis Sargentich, first analysed and named the doctrine in his famous note in the Harvard Law Review, The First Amendment Overbreadth Doctrine (83 Harv. L. Rev. 844). Then, citing Sargentich's note, the Court in Broadrick v. Oakland, 413 U.S. 601, explicitly recognized the doctrine in 1973. 

Under-Inclusive Doctrine.  An under-inclusive law is not necessarily unconstitutional or invalid. The Court has recognised that all laws are under-inclusive and selective to some extent. If a law is substantially under-inclusive, however, it may be unconstitutional.  If a law infringes on constitutionally protected free speech, press, or associational rights, it may be unconstitutionally under-inclusive if it is based on the content of the speech or somehow regulates ideas. In R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the Court struck down a hate speech ordinance that prohibited "the display of a symbol which one knows or has reason to know 'arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.'" A youth in St. Paul, Minnesota, had been prosecuted under the ordinance for burning a cross in the yard of an African-American family. The Court held that the law was unconstitutionally under-inclusive under the First Amendment because it punished only certain speech addressing particular topics; the law addressed the content, rather than the manner, of the speech.

A law is not necessarily invalid just because it is under-inclusive. For example, a statute that prohibited the use of loudspeaker systems near a hospital might be under-inclusive for failing to prohibit shouting or the use of car horns in the same area. This type of under-inclusiveness concerns only the manner of delivering speech, however, and is therefore more likely to pass constitutional scrutiny than a statute that prohibits speech on particular subjects.

THIRDLY AND FINALLY, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this 'least restrictive means' requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.  The "least restrictive means," or "less drastic means," test is a standard imposed by the courts when considering the validity of legislation that touches upon constitutional interests. If the government enacts a law that restricts a fundamental personal liberty, it must employ the least restrictive measures possible to achieve its goal. This test applies even when the government has a legitimate purpose in adopting the particular law. The "Least Restrictive Means Test" has been applied primarily to the regulation of speech. It can also be applied to other types of regulations, such as legislation affecting interstate commerce.

In Shelton v. Tucker, 364 U.S. 479 (1960), the Court applied the least restrictive means test to an Arkansas statute that required teachers to file annually an Affidavit listing all the organisations to which they belonged and the amount of money they had contributed to each organisation in the previous five years. B. T. Shelton was one of a group of teachers who refused to file the affidavit and who, as a result, did not have their teaching contract renewed. Upon reviewing the statute, the Court found that the state had a legitimate interest in investigating the fitness and competence of its teachers, and that the information requested in the affidavit could help the state in that investigation; however, according to the Court, the statute went far beyond its legitimate purpose because it required information that bore no relationship to a teacher's occupational fitness. The Court struck down the law because its "unlimited and indiscriminate sweep" went well beyond the state's legitimate interest in the qualifications of its teachers.

Two constitutional doctrines that are closely related to the least restrictive means test are the Overbreadth Doctrine, supra, and Vagueness Doctrine. These doctrines are applied to statutes and regulations that restrict constitutional rights. 

The least restrictive means test, the Overbreadth Doctrine, and the Vagueness Doctrine all help to preserve constitutionally protected speech and behaviour by requiring statutes to be clear and narrowly drawn, and to use the least restrictive means to reach the desired end.

Legal scholars, including judges and professors, often say that strict scrutiny is "strict in theory, fatal in fact," because popular perception is that most laws subject to this standard are struck down. An empirical study of strict scrutiny decisions in the federal courts, however, conducted by Adam Wrinkler found that laws survive strict scrutiny over 30% of the time. In one area of law, religious liberty, laws survived strict scrutiny review in nearly 60% of applications.

Three Landmark Cases:

Students' free speech rights sometimes clash with schools' interest in maintaining control of public education. Students' First Amendment liberties were affirmed by the Court in the landmark case, Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). In Tinker, the Court ruled that public school students could not be penalised for wearing symbols, such as black armbands, to protest the Vietnam War. Such bans violated the free speech and expression rights of the students.

In two subsequent cases that dealt with censorship, the Court took a more restrictive judicial view of students' right to free expression where funding for school newspapers was provided by the institution. In Hazelwood School District v. Kuhlmeier, 484 U.S. 260, (1988), the Court ruled in favour of a public school principal, who removed several articles from a student newspaper. The articles dealt with a teen's pregnancy and her feelings about her parents' divorce. The Court held that a school newspaper is not a public forum. Since it is not a public forum and funding comes from the institution, school officials have the right to determine what type of student speech is appropriate and it may regulate such speech.

In Planned Parenthood v. Clark County School District, 941 F.2d 817 (1991), the court used Hazelwood to uphold the school's ban of advertisements from Planned Parenthood in a public high school newspaper.

The latter two holdings are, primarily, based on the fact that the school funds the newspapers. They are in contrast to Tinker that saw a prohibition in a school's dress and behaviour code struck down as unconstitutional because it failed to survive strict scrutiny and infringed on a student's free speech and expression rights.

As mentioned in the introduction, the Supreme Court has yet to grant certiorari for a case involving speech codes or hate speech in an educational institution.  If and when the Court agrees to hear a speech code or hate speech case, I think that it will likely build on Hazelwood, supra, and Planned Parenthood, supra, by adding Christian Legal Society v. Martinez, 08-1371 (2010). Christian Legal was a recently decided case involving a Christian law student group at Hastings Law School. Homosexuals wanted to be admitted to the group, but did not wish accept the tenets of the Christian faith as they apply to homosexuality. Furthermore, the gay students were offended by the religious scriptures against homosexuality and the personal faiths of the heterosexual students.  The Court ruled that, not unlike in Hazelwood, as long as a student group is getting funding from the university, the educational institution can decide what speech or practises that may be discriminatory it will allow.  The student group must abide by the speech and behaviour code of the educational institution. The Court focused on funding, not freedom of speech or religion.

Before we move on, I would like to comment on the ruling in Christian Legal Society. The holding in the case has troubled many of us, who specialise in constitutional law.  The qualms raised are not necessarily fact specific to the instant case; instead, the possible implications for future proceedings are unknown and troubling.   Probably one of the most difficult positions in which we find ourselves in the law and one that we, needless to say, try to avoid is a situation where it is necessary to either balance competing constitutional rights or to elevate one individual's rights over that of another.  In Christian Legal Society, the first set of rights to evaluate is that belonging to the Christian students.  Obviously, they have rights of freedom of speech, religion, and association.  Had the group raised its own funding for its meetings, literature, etc., the Court would have likely found for the religious group.  Because the university funded the group, however, it had the right to mandate the rules for sanctioned groups.  Hastings Law School has both a non-discrimination policy and speech code.  For this reason, the meetings must be open to all students.  Now, this case applies to other university funded groups, as well.  The LGBT group must admit Christians.  The school's chapter of NOW must admit the Muslim Men's Society.  That's the law.  Hopefully, the competing groups will remember that just because you can do something doesn't mean that you should.  On a more serious note, let us hope that the Court maintains the funding basis for this decision.  If funding foundaton is ever stripped away, the fears all of us that cherish the First Amendment and, indeed, the Constitution as a whole, will become very real, very quickly.  And, for those that dream of speech codes to prevent the feelings of some from being hurt, you seek that which you do not know and you will rue the day that you find it.

Speech Codes and Behavioural Policies and the Workplace:

One final area that we must address is how speech codes or behavioural policies affect employees.  Obviously, each place of employment will have its own rules and regulations and one must familiarise herself with what is expected of her while on the job and, in some cases, outside of the workplace.  Having said this, two areas are of special importance and must be considered.

One of the areas where the government, including public universities, has wide latitude in censoring speech and information involves the internet. In 1996, Virginia became the first state to pass a law that “restricts access by state employees to lascivious sexually explicit material on computers owned or leased by the state.” In Urofsky v. Gilmore, 216 F.3d 401 (2000), the 4th U.S. Circuit Court of Appeals held that the speech at issue — “access to certain materials using computers owned or leased by the state for the purpose of carrying out employment duties” — was clearly made in the employee’s role as employee. Therefore the statute “does not affect speech by [the professors] in their capacity as private citizens on matters of public concern” and thus “does not infringe the First Amendment rights of state employees.”

One caveat to the general rule that speech is unrestricted and protected can be found in Title VII of the Civil Rights Act of 1964. Employers may sometimes be prosecuted for tolerating "hate speech" by their employees, if that speech contributes to a broader pattern of harassment resulting in a "hostile or offensive working environment" for other employees. See, e.g., Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), Patterson v. McLean Credit Union, 491 U.S. 164 (1989).  These cases do happen frequently and you should be very familiar with the policy of your workplace and, as an employer, it is critical that you protect both your employees and your business.

Question Time With Mo:  Can The Government Confiscate My 401(k) & IRA?

Q: I have heard that the Obama Administration is planning to confiscation our 401(k) & IRA accounts.  Can they do this?


The Federal government will have to get past the Takings Clause of the Fifth Amendment. While the government can use eminent domain to seize property, the owner of the property that is taken by the government must be justly compensated. When determining the amount that must be paid, the government does not need to take into account any speculative schemes that the owner claims the property was intended for use in, i.e., you could not get compensation for possible return on investments at either a date certain in the future known or unknown.

Generally, the fair market value of the property determines "just compensation". If the property is taken before the payment is made, interest accrues (though the courts have refrained from using the term "interest") while the thing corporeal is in abeyance.

The last two words of the amendment promise "just compensation" for takings by the government. In United States v. 50 Acres of Land, 105 S.Ct. 451, (1984), SCOTUS wrote that "The Court has repeatedly held that just compensation normally is to be measured by "the market value of the property at the time of the taking contemporaneously paid in money." Olson v. United States, 292 U.S. 246 (1934)

Deviation from this measure of just compensation has been required only "when market value has been too difficult to find, or when its application would result in manifest injustice to owner or public." United States v. Commodities Trading Corp., 339 U.S. 121, 123 (1950).

The fair market value of your 401(k) and IRAs is its dollar value. The Court would have to abrogate centuries of precedent to permit the Federal government to seize your private property without just compensation and, obviously, if the government has to pay you one dollar for each dollar that it takes, its goal of raising money is lost.

QUESTION TIME WITH MO:  WOULD A WEALTH TAX BE CONSTITUTIONAL?

Q: "I'm saying let's have a flat tax instead of one that allows the rich to pay less in proportion to their net worth than the middle class pay. Yes, you heard me - let's get rid of income tax - and have a FLAT TAX on NET WORTH. No tax increase, JUST A FLAT FAIR TAX on NET WORTH instead of the backward one we have. No deductions, no loopholes."


The Sixteenth Amendment: "The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."

The Constitution would have to be amended in order for the federal government to do that which you propose. The Sixteenth Amendment only permits the taxation of income. The federal government is prevented from taxing land and, by extension, wealth. The Constitution's Article I, Section VIII, gave the federal government power to levy taxes, duties, imports and excises, as “indirect” taxes, requiring only that the duties, imposts and excises be “uniform throughout the United States.” The 16th Amendment authorized a “direct” tax on “incomes, from whatever source derived.” The intent of the Founding Fathers—almost all large landholders—was to prevent the new federal government from using land as a tax base. The Sixteenth Amendment exempted income taxes from the constitutional requirements regarding direct taxes, after income taxes on rents, dividends, and interest were ruled to be direct taxes in Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895).

The federal Constitution prohibits a direct tax on individuals. Article I, Section 9 reads: "No Capitation, or other direct, Tax shall be laid, unless in proportion to the Census." It took the 16th Amendment to authorize a DIRECT INCOME TAX. Seemingly, therefore, Congress cannot directly tax individuals based on their wealth. (The estate tax was upheld by the courts on the grounds that the government was not taxing a person's wealth as such but focusing on a specific event, namely the death of the individual, as the basis for the tax. It is an indirect tax.)

Traditionally, a direct tax in the constitutional sense means a tax on property "by reason of its ownership" (such as an ordinary real estate property tax imposed on the person owning the property as of January 1st of each year) as well as a capitation (a "head tax"). In the late 1800s, the federal courts also began to treat an income tax on income from property, such as rental payments, as a direct tax. In constitutional law, an "indirect tax" or "excise" is an "event" tax, an overt act must occur such as the sale of a product subject to a VAT tax. In this sense, a transfer tax (such as gift tax and estate tax) is an indirect tax. Income taxes on income from personal services such as wages are also indirect taxes in this sense.

In the United States, Article I, Section 9 of the Constitution requires that direct taxes imposed by the national government be apportioned among the states on the basis of population. After the 1895 Pollock ruling (essentially, that taxes on income from property should be treated as direct taxes), this provision made it difficult for Congress to impose a national income tax that applied to all forms of income until the 16th Amendment was ratified in 1913. After the Sixteenth Amendment, no Federal income taxes are required to be apportioned, regardless of whether they are direct taxes (taxes on income from property) or indirect taxes (all other income taxes).

In Brushaber v. Union Pacific Railroad, 240 U.S. 1 (1916), the Supreme Court ruled that (1) the Sixteenth Amendment removes the Pollock requirement that certain income taxes (such as taxes on income "derived from real property" that were the subject of the Pollock decision), be apportioned among the states according to population; (2) the federal income tax statute does not violate the Fifth Amendment's prohibition against the government taking property without due process of law; (3) the federal income tax statute does not violate the Article I, Section 8's uniformity clause (relating to the requirement that excises, also known as indirect taxes, be imposed with geographical uniformity).

All of the precedent requires that there be a "taxable event" on income "derived from real property" before the federal government can tax. Gift and estate taxes are indirect taxes. Direct taxes are only permissible on taxable events that give rise to income whether through salary, bonus, dividend, capital gain, etc. There is no taxable event on wealth. The appreciation after a sale and income are taxable, but other than that, there is no taxable event. The wealth is stationary.

You will have to amend the constitution. First, you will need to repeal the 16th amendment (taxation on income only) and, second, you will have to ratify a constitutional amendment that permits direct taxation on wealth.

Before Citizens United v. Federal Election Commission, 558 U.S. 50 (2010), corporations, both for-profit and not-for-profit, and unions were prohibited from broadcasting “electioneering communications.” An "electioneering communication" was defined in McCain–Feingold as a broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or thirty days of a primary.

The Court did uphold the requirements for disclaimer and disclosure by sponsors of advertisements. The case did not involve the federal ban on direct contributions from corporations or unions to candidate campaigns or political parties to candidates, which is still illegal. Further, Citizens United did not overturn the ban on foreign contributions, which has been in effect since the Tillman Act of 1907.

Held: A provision of the Bipartisan Campaign Reform Act, a/k/a McCain Feingold, prohibiting unions, corporations and not-for-profit organizations from broadcasting electioneering communications within 60 days of a general election or 30 days of a primary election violates the free speech clause of the First Amendment to the Constitution.

Citizens United overruled Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), which had held that a Michigan law that prohibited corporations from using treasury money to support or oppose candidates in elections did not violate the First and Fourteenth Amendments. It also overturned, in part, McConnell v. Federal Election Commission, 540 U.S. 93 (2003), which had held that money was property, not speech, and not all political speech was protected by the First Amendment from government infringement.

Corporations are persons under the law:

In Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819), corporations were recognized as having rights to contract, and to have those contracts honored the same as contracts entered into by natural persons, and standing to prosecute and defend its own interests.

A corporate charter was ruled to be a contract and couldn’t be altered by government because it was a person. The word “corporation” does not appear in the Constitution, but SCOTUS “found” it in the Constitution…kind of like that right to the privacy. Libs, remember, you love a flexible Constitution. The Dartmouth ruling gave the corporations a right of contract, standing to sue and be sued, own property, and those rights held by natural persons.

"This court, then, does not admit the doctrine, that a legislature can repeal statutes creating juridical persons, FN 1 such as private corporations. If it cannot repeal them altogether, of course, it cannot repeal any part of them, or impair them, or essentially alter them, without the consent of the corporators," Dartmouth, supra, at 592.

The foundation of corporate "constitutional protection" is the Contracts Clause, under which the government and a corporation are merely two parties to a binding, private agreement. This undercuts a state's sovereignty over its own creation. Once the Court granted this protection, it had a legal basis on which to begin constructing "corporate personhood."

It also made it difficult for the government to control corporations, so states began to write controls into the charters they granted.

"A citizen, including artificial persons, of the United States residing in any state of the Union, is a citizen of that state," Gassies v. Ballon 31 US 761 (1831).

"It is not reasonable that those who deal with such persons should be deprived of a valuable privilege by a syllogism, or rather sophism, which deals subtly with words and names without regard to the things or persons they are used to represent. It is true that these stockholders are corporators, and represented by this "juridical person," Marshall v. Baltimore & Ohio Railroad Company, 57 U. S. 314 (1853).

"He remarked further that according to the assumption that a corporation was a citizen of the state where it was incorporated, a company having a charter for a railroad in two states and there were many such might sue citizens of the state and place where the president and directors resided, averring that the company was a citizen of the other state," Marshall, supra.

"We remark, as to the subject-matter of the suit being within the exclusive jurisdiction of the State courts, that the courts of the United States and the courts of the States have concurrent jurisdiction in all cases between citizens of different States, whatever may be the matter in controversy, if it be one for judicial cognizance," Dodge v. Woosley, 59 US 331 (1856).

"Without such a court the corporate citizens of each State could not have enjoyed all the privileges and immunities of citizens in the several States, as they were intended to be secured by the second section of the 4th article of the Constitution, Dodge, supra, at 355.

"...Bringing into the courts of the United States all questions in which these artificial beings are concerned has been invented...whether those who made the Constitution ever intended to confer any jurisdiction whatever. The subject of the bill is the title of the corporation to an exemption under the Act of Incorporation, and its object is the protection of corporate franchises and property. The being of the corporation involved in the prayer for relief," Dodge, supra, at 366.

"I am of opinion that the only person having a right to complain was the incorporated society called Charles Lafitte & Co.  In its corporate character, it was liable to be sued and was entitled to sue,” Gray v. Lewis, 8 Ch App 1035 (1873).

"As the law then stood there was no means by which the bank, being a citizen of the same State with Dodge, the tax-collector, could bring into a court of the United States the right which it asserted under the Constitution, to be relieved of the tax in question, except by writ of error to a State court from the Supreme Court of the United States,  Hawes v. Oakland, 104 U.S. 450 (1881).

“This corporation, like others, is created a body politic and corporate, that it may in its corporate name transact all the business which its charter or other organic act authorizes it to do. Such corporations, as juridical persons, may be common carriers, bankers, insurers, merchants, and may make contracts, commit torts, and incur liabilities, and may sue or be sued in their corporate name in regard to all of these transactions. The parties who deal with them understand this, and that they are dealing with a body which has these rights and is subject to these obligations, and they do not deal with or count upon a liability to the stockholder whom they do not know and with whom they have no privity of contract or other relation,” Hawes, supra, 456.

“We understand that doctrine to be that to enable a stockholder in a corporation to sustain in a court of equity in his own name, a suit founded on a right of action existing in the corporation itself, and in which the corporation itself is the appropriate plaintiff, there must exist as the foundation of the suit,” Hawes, supra, at 461.

If you have a problem with corporate recognition in the law, then you should direct your ire at the Marshall Court, not the Roberts Court.

Corporations have constitutional rights:

Because corporations are persons under the law, they have the same constitutional rights as individuals. Further, through the Incorporation Doctrine those rights are extended at the state level. If you have a problem with corporations as "artificial beings" and "juridical persons," with legal personhood, you should begin by directing your ire at the Marshall Court, not the Roberts Court. If you take issue with juridical persons having the same privileges and immunities as natural persons, your problem is with the Constitution and the Waite Court because of its ruling in Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394 (1886), which incorporated the rights of the Constitution to corporations at the state level through the Fourteenth Amendment.

Direct contributions from corporations to campaigns:

Direct contributions to campaigns by corporations are still prohibited under the Tillman Act of 1907. The Act provided, in part, as follows: "[The] Act prohibits corporations from making money contributions in connection with political elections. “Be it enacted, That it shall be unlawful for any national bank, or any corporation organized by authority of any laws of Congress, to make a money contribution in connection with any election to any political office. It shall also be unlawful for any corporation whatever to make a money contribution in connection with any election at which Presidential and Vice-Presidential electors or a Representative in Congress is to be voted for or any election by any State legislature of a United States Senator.”

Again, direct contributions are still illegal. Foreign contributions to campaigns, PACs, unions, etc., are still prohibited.

Ban on contributions from foreign nationals:

In 1938, Foreign Agents’ Registration Act was signed into law. The Act requires agents representing the interests of foreign powers to register and be properly identified to the American public. The Act prohibits foreign nationals from making contributions to candidates in federal, state or local elections. A "foreign national" is defined as a foreign government, political party, corporation, association or partnership, or a person with foreign citizenship, who does not have a green card. The ban is quite broad. The law not only forbids foreign nationals from making contributions, but also prohibits them from spending money in connection with an election, either directly or indirectly. It’s also illegal for anyone to receive such a contribution, to solicit one or to help a foreign national violate the prohibition.

Since 1966, there have been no successful criminal prosecutions under FARA and only 3 indictments returned or informations filed charging FARA violations. The Court has upheld constitutional challenges to FARA, Meese v Keene, 481 U.S. 465 (1987), Block v Meese, 793 F.2d 1303 (D.C. Cir.), cert. den. 478 U.S. 1021, reh. den. 481 U.S 1043 (1987), United States v John Joseph Frank, 262 F.2d 695 (D.C. Cir. 1958), United States v Park Tong-Sun, (D.D.C. 1977), United States v McGoff, 831 F.2d 1071 (D.C. Cir. 1987).

Money is speech:

In Buckley v. Valeo, 424 U.S. 1 (1976), the Court ruled that spending money to influence elections is a form of constitutionally protected free speech.

McCain-Feingold violated the Equal Protection Clause of the Fourteenth Amendment in that it treated corporate persons differently from individuals.

Banning Books:

It was possible that the Court would have ruled differently had then-Deputy Solicitor General Malcolm Stewart, representing the FEC, claimed that under Austin, supra, not said that the government had the power to ban books under McCain-Feingold, if those books contained even one sentence expressly advocating the election or defeat of a candidate, and were published or distributed by a corporation or union. Under intense questioning from the Court, Stewart further argued that under "Austin" the government could ban the distribution of political books over the internet, Amazon's Kindle, prevent a union from hiring a writer to author a political book, and much more. In reargument, then-Solicitor General, Elena Kagan was laughed at by several justices because her arguments were so preposterous.

Hint to Orwellian Administration: In a country with a First Amendment, refrain from arguing that you can ban books, like in Nazi Germany.

"If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech." - Justice Kennedy writing for the majority



1 A juridical person is an entity (such as a firm) other than a natural person (human being) created by law and recognised as a legal entity having distinct identity, legal personality, and duties and rights. Also called artificial person, juridical entity, juristic person, or legal person. See also body corporate.

The claim is generally made that Clinton had a surplus of $69 billion in FY1998, $123 billion in FY1999 and $230 billion in FY2000. Also, Clinton claimed that the national debt had been reduced by $360 billion in the last three years, presumably FY1998, FY1999, and FY2000--though, interestingly, $360 billion is not the sum of the alleged surpluses of the three years in question ($69B + $123B + $230B = $422B, not $360B).

While not defending the increase of the federal debt under Bush, it's curious to see Clinton's record promoted as having generated a surplus. It never happened. There was never a surplus and the facts support that position. In fact, far from a $360 billion reduction in the national debt in FY1998-FY2000, there was an increase of $281 billion. Verifying this is as simple as accessing the US Treasury website where the national debt is updated daily and a history of the debt since January 1993 can be obtained. Considering the government's fiscal year ends on the last day of September each year, and considering Clinton's budget proposal in 1993 took effect in October 1993 and concluded September 1994 (FY1994), here's the national debt at the end of each year of Clinton Budgets:


Fiscal Year--- Year---------Ending National-----Debt Deficit

FY1993----09/30/1993----$4.411488 trillion --------------------------------------------------------------------------------------------
FY1994----09/30/1994----$4.692749 trillion----$281.26 billion------------------------------------------------------------------------
FY1995----09/29/1995----$4.973982 trillion----$281.23 billion------------------------------------------------------------------------
FY1996----09/30/1996----$5.224810 trillion----$250.83 billion------------------------------------------------------------------------
FY1997----09/30/1997----$5.413146 trillion----$188.34 billion------------------------------------------------------------------------
FY1998----09/30/1998----$5.526193 trillion----$113.05 billion------------------------------------------------------------------------
FY1999----09/30/1999----$5.656270 trillion----$130.08 billion------------------------------------------------------------------------
FY2000----09/29/2000----$5.674178 trillion----$17.91 billion--------------------------------------------------------------------------
FY2001----09/28/2001----$5.807463 trillion----$133.29 billion------------------------------------------------------------------------

As can clearly be seen, in no year did the national debt go down, nor did Clinton leave Bush with a surplus that Bush subsequently turned into a deficit. Yes, the deficit was almost eliminated in FY2000 (ending in September 2000 with a deficit of "only" $17.9 billion), but it never reached zero--let alone a positive surplus number. And Clinton's last budget proposal for FY2001, which ended in September 2001, generated a $133.29 billion deficit.

The growing deficits started in the year of the last Clinton budget, not in the first year of the Bush administration. The surplus deception is clearly discernible in the statistics of national debt. While the spenders are boasting about surpluses, the national debt is rising year after year. In 1998, the first year of the legerdemain surplus, it rose from $5.413 trillion to $5.526 trillion, due to a deficit of $112.9 billion.

"Both Democrats and Republicans are all running this year and next and saying surplus, surplus. Look what we have done. It is false. The actual figures show that from the beginning of the fiscal year until now we had to borrow $127,800,000,000." - Democratic Senator Ernest Hollings, October 28, 1999

You can check all of this out at treasurydirect.gov.

"Congress shall make no law...abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." -- The First Amendment

Restrictions on freedom of speech always authorise the government to decide how, and against whom, the restrictions should apply. The more authority the government has, the more it will use that authority to suppress unpopular minorities, criticism and dissent. Because freedom of expression is so basic to a free society, it should 'never' be abridged by the government.

Let’s start with some case law:

Free speech issues did not reach SCOTUS until 1919. That year, the Court dealt with free speech for the first time in the case of Schenck v. United States, 249 U.S. 47 (1919). Schenck, a member of the Socialist Party, had been convicted of violating the Espionage Act for mailing anti-war leaflets to draft-age men during WWI. SCOTUS unanimously upheld his conviction. The prevailing legal view at the time was that any speech that had a "tendency" to cause a violation of law could be punished.
 
The 'Schenck' case was quickly followed by others that ended in decisions equally contemptuous of First Amendment freedoms. Among them was the case of Jacob Abrams, Abrams v. United States, 250 U.S. 616, convicted under the Sedition Act of 1918 (which was repealed in 1920) for distributing leaflets that criticized the American military. However, even though SCOTUS upheld Abrams' conviction, the decision in his case was a watershed: Justices Oliver Wendell Holmes and Louis D. Brandeis dissented, stating that speech could not be punished unless it presented "a clear and present danger" of imminent harm. The Holmes-Brandeis dissent marked the beginning of modern First Amendment theory.

SCOTUS declared the inviolability of First Amendment rights for the first time in 1925 in Gitlow v. New York, 268 U.S. 652 (1925), a case that challenged the conviction of a communist revolutionary under New York's Criminal Anarchy law. Although the Court affirmed the conviction, it announced that freedom of speech and press were protected by the First Amendment from federal encroachment, and "are among the fundamental personal rights and 'liberties' protected by the states." This holding paved the way for the Court in Stromberg v. California, 283 U.S. 359 (1931), to rule that States cannot infringe on the First Amendment right to freedom of speech and expression.

Finally, the Court ruled, in Brandenburg v. Ohio, 395 U.S. 444 (1969), that “mere advocacy of the use of force, or of violation of law (in this case, by a Ku Klux Klan leader) is protected by the First Amendment free speech clause. Only inciting others to take direct and immediate unlawful action would be without constitutional protection.

The 'Brandenberg' test is the law today.

Can free speech be limited in any way? Yes.

The government may place "time, place and manner" restrictions on speech as long as they are "reasonable." For example, requiring people to obtain a permit to hold a meeting in a public building, or to conduct a demonstration that may interfere with traffic, constitutes a justifiable regulation. You can read the plethora of case law on TPM restrictions here: http://www.firstamendmentcenter.org/faclibrary/libraryexpression.aspx?topic=time_place_manner

But restrictions that are overly burdensome or are directed at specific groups or individuals (see: KKK, Nazi groups, or think Phelps) violate the First Amendment. For example, during the 1960s, officials in Southern cities frequently required civil rights activists to apply for permits in order to hold demonstrations, and then granted or denied the permits arbitrarily. Shuttlesworth v. Birmingham, 394 U.S. 147 (1969), is an excellent case to read to understand what fact pattern can cause licencing schemes to be ruled unconstitutional.

Are any forms of expression not protected by the First Amendment? Yes.

SCOTUS has established several limited exceptions to the First Amendment's protections. Here are a couple to consider:

FIGHTING WORDS:

In the 1942 case of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), SCOTUS held that so-called "fighting words...which by their very utterance inflict injury or tend to incite an immediate breach of the peace" are not protected by the First Amendment and can be punished. The Court based its decision on the concept that such utterances are of "slight social value as a step to truth."  While many may see Snyder v. Phelps as a case open to the Fighting Words Doctrine, such is not the case due to the fact pattern.  (Also, see discussion below)

SLANDER, LIBEL, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:

In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Court held “the First Amendment, as applied through the Fourteenth, protected a newspaper from being sued for libel in state court for making false defamatory statements about the official conduct of a public official, because the statements were not made with knowing or reckless disregard for the truth.”

In Hustler Magazine v. Falwell, 485 U.S. 46 (1988), a public figure shown in a parody must show actual malice to claim he is libeled to prove a case of intentional infliction of emotional distress.  Held:  Parodies of public figures, which could not reasonably be taken as true, are protected against civil liability by the First Amendment, even if intended to cause emotional distress.

In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Court held that “the First Amendment permits states to formulate their own standards of libel for defamatory statements made about private figures, as long as liability is not imposed without fault.”

In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), the Court held that “an individual or group can be held civilly liable for ordinary and punitive damages for publishing false assertions about another individual or group, which is not a public figure.” Dun & Bradstreet does stand for the proposition that “context” must be considered. But, “context” must also be within outrageous and personal conduct.


Let’s look at the actual facts in Snyder v. Phelps :

The hideous Phelps family did secure the requisite permits to protest the funeral. The police were well aware that they were there and had insured that the protesters stood outside of the barrier as proscribed in Maryland’s TPM restrictions. No signs were directed, specifically, at Matthew Snyder. In fact, the clan used the same signs that very day in 2 other protests: In Annapolis and at the State Capitol.

The most important facts to keep in mind:

1. The Snyder family did NOT personally see the Phelps family or their signs before, during, or after the funeral. They were told about the protesters’ presence afterward at a family gathering.

2. At the family gathering, the family was told that the Phelps protesters had posted an “Epic” on the internet depicting their protest at the funeral. The Snyder family ELECTED to view the “Epic” on the internet.

3. Petitioner ADMITTED that the Phelps family did not violate Maryland’s TPM restrictions nor did it violate any other criminal statutes, including the State’s funeral protest law that was passed subsequent to the Snyder funeral.

4. None of the signs were directed, specifically, to Matthew Snyder or the Snyder family. As Justice Alito recognised in argument, the “You” in the signs and in the Epic was generic in nature and not directed at any individual or group. It is crucial to bear in mind that not one sign named Snyder. All signs were to the effect: “God Hates F@gs!” (generic and plural), “Get Out Of Iraq!” (political), “God Hates You!” (non-specific), “You’re Going To Hell! (generic), etc.

5. Mr Summers, counsel for the Petitioner, Albert Snyder, argued that neither Sullivan nor Falwell applied because Matthew Snyder was not a public figure (true, but the estate of a decedent cannot sue for defamation).

ISSUES:

1. Can a person or group put anything on the internet?

Mo: Yes, but not without the possibility of liability. One cannot post copyrighted material. One can also not post defamatory statements directed specifically at private individuals. If I post an article that claims, for example, that my neighbour, John Adams, has been embezzling funds from the Co-op Building Fund and such are untrue, I can be sued for defamation. On the other hand, if I post an article that claims, for example, that Obama has sent stimulus funds to a personal offshore bank account and such are untrue, it is highly unlikely that I cannot be sued because he is a public official and he must prove that I posted information that I knew to be false and did so maliciously. An opinion is not defamation – for either private or public persons. If my opinion is that you are fat and I say so, I have not defamed you. You may be hurt, but you have no cause of action. This is even more the case for public figures.

2. Can a person put anything on television, even if it is obnoxious, about a private individual?

Mo: See #1.

3. Does it make a difference if the public comments about political issues are directed to public or private individuals?

Mo: I argue “No.” If I approach a returning soldier and accuse him of participating in an “illegal war” and say that soldiers are “baby killers”, while such behaviour would be despicable, it is permissible and because it is my opinion on a political issue and such matters not whether directed at Obama or G.I. Joe. (Mo: I am not applauding such. Just arguing the law.) On the other hand, the late John Murtha's claims that SPECIFIC soldiers were murderers WAS ALMOST CERTAINLY DEFAMATION, as the facts of the case did not support his statement.

4. To what extent, can a political opinion on a public issue (homosexuality, war, etc.) become the intentional infliction of emotional distress when it is directed at private individuals?

Mo: If my statement is “God Hates F@gs!” and is generic, even if directed at an individual, I do not believe that such can be proscribed by the government or give rise to a tort. Also, this would create a VERY SLIPPERY SLOPE. What if I say “Mohammed was a pervert and all of his followers are hated by the ‘real’ God”? Should the government be able to censor such? No. Should Muslims be able to sue me for intentional infliction of emotional distress? No.

5. Can there be intentional infliction of emotional distress when an individual makes an obnoxious, but generic statement, about another individual or group (soldiers) in an effort to raise public consciousness?

Mo: No.

6. And, most importantly, under what theory of the First Amendment stand for the proposition that public speech or speech on a public or political matter be treated differently depending upon the recipient of the speech?

Mo: There is no First Amendment theory to support such.  Where the public speech is on a public or political matter, there can be no intentional infliction of emotional distress. It is free speech and is protected. It cannot matter who receives or hears the speech. If I am standing in Central Park and speaking out against the war or homosexuality and the parent on a dead soldier or a homosexual hears me, there is no INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. (There are cases in Britain that criminalise speech against gays, so be careful). On the other hand, TPM restrictions can be imposed that would proscribe my speech inside of a funeral service, for example. Those are legal.

The Phelps family is disgusting. It should be shunned. Its protests should be met with larger protests. That said, hate speech should never be recognised as a crime or tort. To do so, would eventually result in the government deciding what citizens may or may not say. Do not forget: The government once held this power and it was less than a century ago.

I encourage you all to either listen to the oral arguments (http://www.supremecourt.gov/oral_arguments/argument_audio.aspx) or read the transcript (http://www.supremecourt.gov/oral_arguments/argument_transcripts/09-751.pdf).




FIGHTING WORDS DOCTRINE:

The Fighting Words Doctrine (hereinafter referred to as "FWD"), what I also call the "Your Momma! Doctrine", does not apply. The Snyder family did not witness the protest at the time that it occurred. Fighting words, which by their very utterance inflict injury or tend to incite an immediate breach of the peace. Because the family did not see anything until it viewed the Epic online, there was "no incitement or immediate breach of the peace."

Some history:

The FWD was first articulated in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Chaplinsky was convicted of violating a NH statute that prohibited the use of offensive, insulting language toward persons in public places after making several inflammatory comments to a city official. The Court, in upholding the statute as constitutional, set down these famous words:

"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

Tellingly, despite continued reaffirmation of the fighting-words doctrine, the Court has declined to uphold any convictions for fighting words since Chaplinsky.

In fact, in Terminiello v. Chicago, 337 U.S. 1 (1949), the Court immediately began a long process of narrowing and reshaping the broad scope of the original fighting-words doctrine. Terminiello was charged with breaching the peace after publicly insulting a group of adversaries. While not addressing whether Terminiello's speech constituted fighting words, the Court found that the breach of the peace statute in question was overbroad because it permitted convictions for both fighting words and constitutionally protected expression. Concluding that speech that merely causes anger or outrage does not amount to fighting words, the Court opined that speech is protected unless the expression is "likely to produce a clear and present danger of a serious intolerable evil that rises above mere inconvenience or annoyance." The Court explicitly stated that it would not assume that certain words inevitably provoke violent reactions by individuals. Rather, the Court's analysis focuses on the context in which the words were uttered, not merely the content of the words themselves.

The FWD was again reaffirmed in Street v. New York, 394 U.S. 576 (1969). After publicly burning an American flag and making defiant comments regarding the flag, Street was convicted of violating a NY statute making it a misdemeanor to "publicly mutilate, deface, defile, defy, trample upon, or cast contempt upon an American flag either by words or act." SCOTUS reversed Street's conviction because his comments, considered a possible factor in his conviction, were constitutionally protected by the First Amendment. Emphasising that the mere offensiveness of words does not strip them of constitutional protection, the Court again noted that fighting words must present an actual threat of immediate violence, not merely offensive content.

The Court further expanded its protection of offensive speech in Cohen v. California, 403 U.S. 15 (1971). Cohen was arrested and convicted for disturbing the peace after wearing a jacket bearing the words "F--- the Draft." SCOTUS reversed the conviction, redefining fighting words as only those "personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reactions." The Court reasoned that because Cohen's statement was not an insult directed toward a particular individual, it could not be regulated as fighting words.

In the two cases that followed Cohen, Gooding v. Wilson, 405 U.S. 518 (1972) and Lewis v. City of New Orleans, 408 U.S. 913 (1972), the Court declined to review the circumstances surrounding the challenged speech, opting instead to overturn the convictions by holding the statutes in those cases to be constitutionally overbroad. In Gooding, the defendant was part of a group picketing Army headquarters in protest of the Vietnam War. A conflict arose when the protesters refused to comply with police orders to cease blocking a building entrance. The defendant was subsequently convicted of violating a statute that prohibited the use of "opprobrious words or abusive language, tending to cause a breach of the peace." Finding that the statute restricted speech beyond fighting words, the Court invalidated it as constitutionally overbroad.

The Snyder family did not witness the actual protest nor were the signage directed at either Matthew Snyder or the Snyder Family.



HATE SPEECH:

Since the subject has been raised:

The Federal government and state governments are broadly forbidden by the First Amendment of the Constitution from restricting speech. See, e.g., Gitlow v. New York, 268 U.S. 652 (1925), incorporating the free speech clause. Generally speaking, the First Amendment prohibits governments from regulating the content of speech, subject to a few recognized exceptions such as defamation and incitement to riot. Even in cases where speech encourages illegal violence, instances of incitement qualify as criminal only if the threat of violence is imminent. This strict standard "prevents prosecution of many cases of incitement, including prosecution of those advocating violent opposition to the government, and those exhorting violence against racial, ethnic, or gender minorities." See, e.g., Yates v. United States, 354 U.S. 298 (1957), Brandenburg v. Ohio, 395 U.S. 444 (1969).

One caveat can be found in Title VII of the Civil Rights Act of 1964. Employers may sometimes be prosecuted for tolerating "hate speech" by their employees, if that speech contributes to a broader pattern of harassment resulting in a "hostile or offensive working environment" for other employees. See, e.g., Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), Patterson v. McLean Credit Union, 491 U.S. 164 (1989).

In the 1980s and 1990s, more than 350 public universities adopted "speech codes" regulating discriminatory speech by faculty and students. These codes have not fared well in the courts, where they are frequently overturned as violations of the First Amendment.  See, e.g., Doe v. Michigan, 721 F. Supp. 852 (1989), UWM Post v. Board of Regents of University of Wisconsin, 774 F.Supp. 1163 (E.D. Wis. 1991), Dambrot v. Central Michigan University, 839 F.Supp. 477 (E.D. Mich. 1993), aff'd, 55 F.3d 1177 (6th Cir. 1995), Corry v. Stanford, No. 740309 (Cal. Super. Ct. Feb. 27, 1995).

Debate over restriction of "hate speech" in public universities has resurfaced with the adoption of anti-harassment codes covering discriminatory speech.

Here is an interesting paper on Speech Codes:

http://www.thefire.org/article/11296.html

Speech Codes are untenable and violative of the First Amendment. This is particularly true at universities that are public or receive federal funding.

Can We Save the Goose That Lays the Golden Eggs?


By Bill Frezza

A strange and wonderful thing is happening in this run-up to the midterm elections. It's about the only thing that gives me hope that our country may yet escape ruin.

Soaring oratory aside, democracy rests on the idea that most citizens vote their self interest. A solid tenet of political campaigning has always been that elections could be won by convincing enough constituencies that you and your party could give them something for nothing. It didn't matter which group was being targeted - wannabe homeowners, union retirees, Midwest farmers, reckless bankers, or bellicose defense contractors. It didn't matter what was being promised - low cost mortgages, fat pensions, crop subsidies, easy money, or bloated contracts. The strategy worked as long as enough voters believed that their goodies would be delivered at someone else's expense. This has turned the Federal Government into the largest income redistribution machine in the history of man.

Our two political parties pander to different groups but both Democrats and Republicans had a common interest in making sure that the system kept doling out largesse. More often than not political compromise consisted of larding up spending bills to the point that both parties could honestly tell their core constituencies that they delivered the goods.

Given the general state of economic illiteracy it was easy to get people to believe that a majority of the people would come out ahead and though a minority might squawk that was just the price they paid for a civilized society. Most people were also led to believe that no matter how distorted the economy got, businesses would somehow figure out how to get by.

While the rhetoric of the two parties varied, each time one or the other gained power government spending went only one way. Up. A vast social-issues issues sideshow was maintained to sharpen party differentiation and entertain the masses but at the end of the day these issues bore little relevance to the fiscal health of the country.

The giveaway game isn't working any more, and the reason is simple. The cupboard is bare. It's not only bare; it's been hocked - along with the kitchen, the house, the car, the foundation, and the neighborhood. Our government is being kept alive right now on printing press money, and we all know how that story ends. This means that the majority can no longer deceive itself into believing that either party can deliver on new promises. It is even beginning to dawn on a growing minority that old promises, specifically the ones underlying middle class welfare schemes like Social Security and Medicare, are unlikely to be kept either.

This has unleashed a lot of anger, some of it blind, some of it directed, and some of it cynically manipulated. The party currently in power is receiving the brunt of this anger but confusing this for support of the party currently out of power would be a mistake. Things are going to get uglier over the next few years no matter who is driving the boat. The Republicans may celebrate after they take the House of Representatives in November but that's a lot like celebrating being promoted to senior officer on the Titanic.

The only way to escape this death spiral - if it can be escaped - is economic growth. We've done it before and just maybe we can do it again. And the only way our economy is going to start growing again is to unleash the power of the American people, not doing make-work projects but responding to the needs of businesses each charting their own path through the competitive thicket in search of real profits. No subsidies, no kickbacks, no mandates, no handicaps, no shackles. Just go create more wealth than you consume.

Businesses are sitting on enough capital to fund a return to growth but they have gone on strike, just as they did after Herbert Hoover and Franklin Roosevelt teamed up to drive them into the bunkers last time an easy-money speculative orgy turned spectacularly sour. Cranking up the printing presses to push low interest government loans on companies that don't want to borrow money is idiotic. Building high speed trains to nowhere is idiotic. Demonizing the two percent of the populace that makes the vast majority of the business decisions in this country is especially idiotic. Only removing the boot of uncertainty and the burden of jacked-up taxes, promising to GET OUT OF THE WAY, will revive the spirit of industry and commerce that made us who we were.

Time is growing short. Let's hope it's not too late."