Recent Questions Regarding President Obama's DOMA Decision

In the last few days several questions have arisen in articles dealing with the President's decision not to defend the lawsuits challenging DOMA, the Defense of Marriage act. This is an attempt to answer those questions for those who may not be familiar with the legal nuances involved.

The questions are:

Can the President refuse to defend the Constitutionality of a law;

Why did Obama seem to invite the Congress to intervene in the suit;

How can the President continue to enforce a law he thinks is Unconstitutional;

Exactly what is the Constitutional question in the DOMA cases;

If Obama's not defending the law, why is he staying in the case;

How can he think DOMA is Unconstitutional if he doesn't believe in gay marriage; and

Does this impact gays in the military following DADT repeal?


Can the President refuse to defend the Constitutionality of a law?

It doesn't happen often, but Presidents can refuse to defend laws that are challenged as unconstitutional. Holder's letter to Congress explaining the President's DOMA decision discusses the issue in general terms,

As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense . . . . However, the Department . . . does not consider every plausible argument to be a “reasonable” one. . . . Moreover, the Department has declined to defend a statute “in cases in which it is manifest that the President has concluded that the statute is unconstitutional,” as is the case here.

While this is a rare occurrence, the practice of not defending laws goes back for years as outlined in the article.

In 1989 . . . the George H.W. Bush administration refused to defend the constitutionality of federal affirmative preferences in the Metro Broadcasting case. In the 1982 Bob Jones case, the Reagan administration refused to defend an IRS policy denying tax exemptions to a university that practiced racial segregation for religious reasons. Significantly, both policies were ultimately upheld by the Supreme Court . . . .

Congress even acknowledges that this can occur which is why they enacted a law that requires the President to notify the Congress in the event of such a decision,

The Attorney General shall submit to the Congress a report of any instance in which the Attorney General or any officer of the Department of Justice . . . determines . . . . to refrain (on the grounds that the provision is unconstitutional) from defending or asserting, in any judicial, administrative, or other proceeding, the constitutionality of any provision of any Federal statute . . . .

So people can question whether President Obama should have taken this action, but they cannot question its legality or say it is unprecedented.

Why did Obama seem to invite the Congress to intervene in the suit?

He did it because he obeys the law. The same law that requires the President to report to Congress says he must do so

. . .within such time as will reasonably enable the House of Representatives and the Senate to take action, separately or jointly, to intervene in timely fashion in the proceeding, but in no event later than 30 days after the making of each determination . . .

All those who would ascribe some nefarious motive to that part of his letter are uninformed. He is scrupulously obeying the law, nothing more, nothing less.

How can the President continue to enforce a law he thinks is Unconstitutional?

This really involves two separate and distinct issues. First, the Constitutionality of DOMA was challenged. As discussed above, the President is generally obligated to defend laws against Constitutional challenge. However, there are circumstances when Presidents can decline to defend cases. He has decided that DOMA is no longer Constitutionally defensible and will now take that position in court.

On the second issue, the question is different. The short answer is that the President has a duty to enforce the law regardless of what he thinks about it. The President swore an oath,

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

The President swore to faithfully execute the Office of President. Foremost among the duties of the office are to "take care that the laws be faithfully executed." DOMA is the law. The President does not have the power to issue a binding ruling that DOMA is Unconstitutional. That power resides in the Supreme Court. Since the 1803 case of Marbury v Madison it has been accepted that only the Court can declare a law Unconstitutional. Unless that happens or until it is repealed, DOMA is the law of the land. If a President is presented with a law that he thinks is Unconstitutional he should not sign it. The same applies to every Member of Congress who votes on a law. But once passed and signed, it is the law.

There are some legal scholars who disagree, arguing that the President has no more obligation to enforce laws he thinks are Unconstitutional than to enforce the laws of another country. A detailed discussion of this position is beyond the scope of this article except to note that the real issue is "who decides if a law is Constitutional." If the President does, then there are only two branches of government and the Presidency can override the legislature at its will. If both the Court and the President decide, you have uncertainty and chaos. It the decision rests with the Court, you have certainty, order, and a true separation of powers. Thankfully, most Presidents have respected this third view and the circumstances where laws have been ignored are rare.

Exactly what is the Constitutional question in the DOMA cases?

The Constitutional issue presented in DOMA and the Holder's letter is straightforward, but a discussion requires some background. Section 3 of DOMA, says that for purposes of all Federal laws a marriage is only between a man and a women. In effect the Federal government will not recognize same sex marriages under state laws for purposes of anything the government does, from granting spousal benefits to child custody and alimony.

DOMA has been challenged in several different suits throughout the country. These suits challenge DOMA by arguing that it violates the Fifth Amendment guarantee of equal protection under the law. Astute observers will note that the Fifth Amendment, unlike the Fourteenth Amendment, does not include the words "equal protection." Rather, it guarantees that no person shall be

deprived of life, liberty, or property, without due process of law;

This creates an anomaly because the Fifth applies to the Federal Government while the Fourteenth applies to the states. The anomaly was resolved in the 1954 case Bolling v Sharpe, where the Supreme Court found that "the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive" and that it was "unthinkable that the same Constitution would impose a lesser duty on the Federal Government" than it does on the States. That ruling created the Fifth Amendment right of equal protection against the Federal Government.

Before getting to the President's DOMA decision we have to understand how courts analyze equal protection challenges to laws. First, the court decides the level of scrutiny that should be given the challenge. In cases of discrimination based on race, religion, and other so-called "suspect" classifications courts use something called "strict scrutiny." Suffice it to say, if strict scrutiny is applied in a case, the law is usually struck down. At the lowest end of the spectrum is the "rational basis" test, which is basically whether the challenged classification is rationally related to a legitimate governmental interest. In between is something called "heightened scrutiny," in which the government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest. Only after the court decides on the level of scrutiny does it look at the law to see if it satisfies that scrutiny.

The DOMA decision is all about the difference between rational basis and heightened scrutiny, which standard should apply to DOMA, and how it will affect the outcome.

This is what President Obama did. He has been defending DOMA challenges in Circuits where the courts have held that the rational basis standard applies to DOMA. In those case he has said DOMA satisfies that standard. But two recent cases arose in the Second Circuit, where no standard has been established. He and DOJ re-examined the question of the appropriate standard for those case and determined that the heightened scrutiny standard should apply. Furthermore, they determined that if that standard applies, DOMA will not meet the standard and is therefore Unconstitutional. The President also said since the United States was now taking that position in the Second Circuit, it would inform the courts in the other circuits that it would be arguing the same position in those cases.

If Obama's not defending the law, why is he staying in the case?

The simple answer is that DOJ is in these cases until the Court dismisses the case or dismisses the Government from the case. Defendants can't just drop out. Now Justice will argue that the new standard should apply and that the law is Unconstitutional under that standard but the court may not agree. While it doesn't happen often, there have been cases where a court has not agree with a DOJ interpretation that a law is Unconstitutional. In fact Holder recognized that a court may disagree with DOJ's position on heightened scrutiny, when he wrote,

If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard.

Also, some of these cases involve other issues, such as in one case wether an employee can actually sue the Office of Personnel Management. Those issues still need resolution. Finally, there will be timing and implementation issues that DOJ will want to weigh in on.

How can he think DOMA is Unconstitutional if he doesn't believe in gay marriage?;

People who ask this question are either cynical or don't understand this is a strength, not a weakness, of President Obama. It is well know that the President has said that his personal views on gay marriage are evolving but as of now, based on personal moral beliefs, he does not support it. So what you have is a President who is refusing to let his personal morality dictate his legal analysis of a Constitutional issue. How refreshing. Wouldn't it be nice if all Presidents and all Members of Congress, both Senators and Representatives, acted the same way.

Does this impact gays in the military following DADT repeal?

The final outcome most certainly affects gays in the Military following the repeal of Don't Ask, Don't Tell. In the future gays will be able to openly serve. When they can it is a certainty that there will be same sex marriages involving members of the military. As long as DOMA remains in force the spouses of those service members will not get the same benefits afforded to other spouses. In that sense they will be in the same position that same sex spouses of Federal civilian employees are today.

Constitutional Misdirection Will Not Derail the Health Care Law

The subtitle for this article could be “What is bad for pot growers is good for the health care law.”

Many pundits have prognosticated that the Affordable Care Act will be struck down by the Supreme Court because two District Court Judges (of four that have ruled on the merits) ruled some or all of the law violated the Constitution. These pundits are wrong for three simple reasons.

The ACA presents a very simple Commerce Clause case that is supported by at least sixty years of precedent. Second, the opponents of the law actually know this which is why their challenge is not based on traditional Commerce Clause arguments but rather what could politely be referred to as Constitutional misdirection. Lastly, it is not certain this case will go to the Supreme Court, but if it does it may ultimately be sustained by eight Justices.

Since the 1944 case, US v Southeastern Underwriters, the Supreme Court has held that the business of insurance involves interstate commerce. If insurance is commerce, it is impossible to argue that the business of health insurance is not commerce . As interstate commerce Congress can regulate that business through its authorities in the Necessary and Proper Clause, which provides:

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.

As long as a federal law or regulation is necessary and proper to achieve an end that falls within a power granted to the Congress and as long as that law or regulation does not conflict with any other provision of the Constitution, it will be sustained. These points were recently made by Charles Fried, President Reagan’s Solicitor General and a self described opponent of the ACA and the individual mandate, in recent Congressional testimony.

So the question becomes whether the insurance mandate is necessary and proper to the achievement of Congress’ design in the regulation of the health insurance industry. Before looking at some Supreme Court Cases on the subject, there is actually support for the proposition from an unlikely source. The recent decision in Florida v HHS striking down the ACA actually supports that proposition. Yes, the court did rule that the insurance mandate, the requirement that individuals purchase insurance, is unconstitutional. But the court went on to rule that since that provision is absolutely integral and indispensable to the entire regulatory scheme established in the ACA, the entire law would have to be struck down. Well, the court was incorrect in saying that the mandate was unconstitutional but was clearly correct in saying the mandate is entirely necessary and proper and, in fact, an essential feature of the regulatory scheme established by Congress.

Opponents of the ACA have argued that a 1995 case in which the Supreme Court struck down a law making it a crime to have a gun near a school zone suggests that the Court has begun limiting Congress’ Commerce Clause powers. They are correct that US v Lopez struck down the Gun Free School Zones Act of 1990, but it did so because the Court found that

The Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce. We hold that the Act exceeds the authority of Congress "[t]o regulate Commerce . . . among the several States . . . ." U. S. Const., Art. I, §8, cl. 3.

Lopez hinged on one question: does possession of a gun in a school zone affect interstate commerce. In support of the law, the Government argued “that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways.” The Court didn’t buy the argument. In a widely quoted conclusion, the Court stated,

To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. See supra, at 8. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a distinction between what is truly national and what is truly local, cf. Jones & Laughlin Steel, supra, at 30. This we are unwilling to do.

Whether you agree with the Lopez decision or not, one thing is clear, it does not represent a significant change in Commerce Clause law and, moreover, should have no impact on any ACA cases. There is no doubt that the health insurance industry involves interstate commerce, that decisions to purchase or not purchase insurance have a direct effect on that commerce, and that the mandate to purchase insurance is not only necessary, but essential to giving effect to the overall regulatory scheme enacted by Congress.

Among lawyers there is a well-known adage when arguing a case: if the law is on your side, argue the law; if the facts are on your side, argue the facts; and if neither is on your side, argue the equities. The opponents of the ACA have adopted a revised version of this saying. They don’t have the law on their side. They don’t have the facts on their side. So they are left arguing irrelevancies. In this case the irrelevancy they argue is that by requiring people to buy insurance, Congress is not regulating activity, but rather is regulating inactivity. Even if that argument were valid, it is irrelevant.

The reason it is not valid is that Federal laws are filled with countless examples of cases where inactivity is sanctioned. If you don’t pay your taxes, i.e., you take no action, you will be sanctioned. The same applies to a business that is inactive when it comes to installing pollution control equipment or safety equipment for its workers. The requirement in the ACA that people buy health insurance is no different. If you don’t do it, you can be fined.

But frankly, that discussion is irrelevant, it is misdirection. The only questions before the Court is whether the business of health insurance constitutes interstate commerce and whether the mandate is a necessary and proper exercise of Congress’s power to achieve the regulatory scheme it has established in the ACA. Anything that is essential to achieving that scheme is Constitutional unless it conflicts with some other Constitutional provision.

In that regard, the opponents have suggested that they have some form of as yet unrecognized “liberty” interest in not buying insurance and that this interest overrides the Congress’ interest in having a universal health care system. However, in making this argument, they have to contend with the plight of Mr Jacobson. In 1905 the Supreme Court ruled in the case Jacobson v Massachusetts that a person could be fined or imprisoned for failing to have a smallpox vaccination that was required by state law. If you can be fined for failing to agree to a potentially painful vaccination, surely you can be fined for failing to buy health insurance.

Throughout the debate, there has been much discussion about whether Justice Scalia will vote to uphold the law. Before getting to that issue it is important to note that this case may not necessarily go to the Supreme Court. Most cases heard by the Supreme Court are considered only because the Court granted, in its sole discretion, what is called a writ of certiorari. Except in rare case not applicable here a case will not be heard unless certiorari is granted. The court has established non-binding rules governing the granting writs of certiorari. The most likely reason for certiorari to be granted in this case will be if there are conflicting decisions by two or more Courts of Appeals which have heard the case. We’ll have to wait and see whether such a split occurs, but one should not be surprised if all the Circuit decisions ultimately uphold the law. If that is the case, the Court may well decide to not hear the case.

Assuming the case does go to the Supreme Court, many people think that the outcome will hinge on the vote of Justice Kennedy, the so-called “swing” Justice. However, there is reason to believe the vote will not be that close. Lawrence Tribe recently argued this same point in a NYT opinion piece. But while Tribe speaks more generally about the Court and all the Justices, there is reason to believe that the key Justice will be Antonin Scalia.

When one looks at what Scalia has written in other Commerce Clause cases, it is clear that for him to strike down this law he would have to repudiate several of his past opinions and decisions. Chief among them is a notable case that will also present some irony for him and his critics.

Remember that 1995 case, US v Lopez, involving guns in school zones that the opponents want to hang their hats on. Well, ten years later, in 2005, the Court decided Gonzalez v Raich, which should have much more of a bearing on the issue. Raich involved the question of whether the Federal Controlled Substances Act was Constitutional in so far as it regulated (criminalized) the private, noncommercial, growth and consumption of marijuana. The law was found to be with Congress’ Commerce Clause powers and was roundly criticized by many progressives. Whether one agrees with the result in that case or not, it does illustrates how broadly the Court, and Justice Scalia in particular, has been willing to read the powers of Congress under both the Commerce Clause and the Necessary and Proper Clause. In his concurring opinion Scalia stated,

The application of these principles to the case before us is straightforward. In the CSA [Controlled Substances Act], Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana. The Commerce Clause unquestionably permits this. The power to regulate interstate commerce “extends not only to those regulations which aid, foster and protect the commerce, but embraces those which prohibit it.” Darby, 312 U.S., at 113. See also Hipolite Egg Co. v. United States, 220 U.S. 45, 58 (1911); Lottery Case, 188 U.S. 321, 354 (1903). To effectuate its objective, Congress has prohibited almost all intrastate activities related to Schedule I substances–both economic activities (manufacture, distribution, possession with the intent to distribute) and noneconomic activities (simple possession). See 21 U.S.C. § 841(a), 844(a). That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation. Rather, Congress’s authority to enact all of these prohibitions of intrastate controlled-substance activities depends only upon whether they are appropriate means of achieving the legitimate end of eradicating Schedule I substances from interstate commerce.

To summarize, a non-economic, non-commercial, activity that occurs solely within a state can be regulated by Congress as long as it is an appropriate means for achieving a broader objective that involves regulating interstate commerce.

There is one last point. It has been argued that since the ACA requires people to purchase something from a private party, as opposed to paying a tax to the government, that requirement cannot be sustained. As with the “inactivity” argument there is no support for this. The court has upheld similar requirements in the past such as in US v Darby Lumber Co where the Court upheld the minimum wage. That law requires employers to pay money against their wishes to private parties, their employees. You can read more about that case in this article. The Darby opinion was cited by Scalia with approval in his Raich opinion where he wrote:  

In Darby, for instance, the Court explained that “Congress, having … adopted the policy of excluding from interstate commerce all goods produced for the commerce which do not conform to the specified labor standards,” 312 U.S., at 121, could not only require employers engaged in the production of goods for interstate commerce to conform to wage and hour standards, id., at 119—121, but could also require those employers to keep employment records in order to demonstrate compliance with the regulatory scheme, id., at 125. While the Court sustained the former regulation on the alternative ground that the activity it regulated could have a “great effect” on interstate commerce, id., at 122—123, it affirmed the latter on the sole ground that “[t]he requirement for records even of the intrastate transaction is an appropriate means to a legitimate end,” id., at 125.

It would be difficult to now argue that while Congress can require an employer to pay an employee a specified wage against his wishes, Congress cannot require an individual to pay an insurance company to purchase an insurance policy. In each case individuals are being required to pay money to private parties that they don’t wish to pay. 

Is Sarah Palin Running For First Lady?

There has been much discussion of late as to whether Sarah Palin is running for the Presidency. People have been trying to read the tea leaves by examining her book tours, her television shows, her numerous Faux interviews, and her tweeting to discern her intentions. The problem with the media analysis of Palin is that the pundits are looking at the wrong political office. Palin is not a campaign for the Presidency. Nope. The evidence is clear. She is running for the Office of First Lady.

“Preposterous,” you say, “she can't run for First Lady.” Well, of course she can. After all in 2008 she ran for Vice President, a position so far above her education, abilities, and temperament, that she would have no trouble seeing the Office of First Lady as within her grasp.

It is clear that she is running for First Lady, rather than President, because she has been waging a relentless campaign to defeat the current incumbent of that office, Michelle Obama. Everyone knows that when you are in a political campaign the very first thing you have to do is attack your opponent, bringing that person down in the eyes of the electorate. That is exactly what Palin has been doing. Why just yesterday she ridiculed Mrs. Obama’s anti-obesity campaign

While making s'mores at one point during Sunday's episode, the former Alaska governor proclaims the marshmallow and chocolate treat is "in honor of Michelle Obama, who said the other day we should not have dessert."


This is just the latest battle in Palin’s jihad against Mrs. Obama for having the temerity to suggest that there is an obesity problem in the United States and that the First Lady should use the bully pulpit of her position to encourage better eating habits among Americans, particularly America's youths. A few weeks ago Palin attacked Mrs. Obama saying,

"Instead of a government thinking that they need to take over, make decisions for us according to some politician or politician's wife's priority," Palin said, "just leave us alone, get off our back, and allow us as individuals to exercise our own God-given rights to make our own decisions, and then our country gets back on the right track."

And who can forget the famous cookie incident where

"Mama Grizzly" stopped by a school in Pennsylvania with dozens of cookies, a gesture obviously in protest to Michelle Obama's campaign for better nutrition.

"Who should be making the decisions what you eat and school choice and everything else?" Palin asked the students. "Should it be government, or should it be the parents?"

Yes, Palin has been attacking Michelle Obama relentlessly for over a year, making fun of virtually everything Mrs. Obama does. And there is only one reason for these attacks. Palin is fighting hammer and tongs to succeed Michelle Obama as the next First Lady of the United States.

Of course some people might say that you can't really run for the office of First Lady, you have to be married to the person elected President. In response Sarah would say, you don't know Palin. After all, she convinced the voters of Alaska to elect her for an eighteen month tour as governor of a state with the same population as a typical Congressional District and with about a third the population of the average Borough in the City of New York. She also convinced a grumpy old man to pluck her from obscurity and place her on his ticket as a Vice Presidential candidate. Having achieved those seemingly impossible feats surely she can find a way to become the First Lady.

The obvious question arises as to how Palin and intends to gain the office of First Lady. One answer might be that she will push her husband Todd to run for the Office of Dude of the United States (DOTUS) so that she could become First Dudess of the United States (FDOTUS). It shouldn't be hard to get Todd elected. After all Sarah had great success bringing about the election of many mama grizzlies during the 2010 congressional elections, such as Sharon Angle, Christine O’Donnell, and Carly Fiorina. With those victories behind her certainly she can switch gears and find a way to promote the snowmobiler in chief to the highest office in the land.

Those who are skeptical about this strategy believe she has a much more sinister and devious plan in mind. They think she intends to directly substitute herself for Michelle Obama at the right hand of her husband Barack. All she has to do is convince the President that Michelle is no longer an asset and is not worthy of his affections. These attacks on Michelle's public outreach are designed to show the country and the President how truly out of touch Mrs. Obama is. They reveal that Michelle is nothing more than a socialist, communist, bleeding heart, do gooding, anti-dessert, vegetarian.

Once phase one is over and Michelle is exposed as a political liability all Sarah needs to do is wink her eye and cast one of her come hither looks and poor defenseless Barack and he will be eating out of the palm of her hand. Of course there is the small technicality of the fact that Sarah is currently married to Todd, but that is a problem easily solved. There will be many snowmobile races on frozen lakes in Alaska this winter. Everyone knows how hazardous that sport is.

Get ready America, the mother grizzly of all battles has been joined.

Breaking - Supreme Court Declares Minimum Wage Constitutional

Disclaimer. This news first broke in 1941. But it would be breaking news today for Joe Miller, Republican and Tea Party candidate for Senate from Alaska. Hopefully it will be of interest to others.

Joe Miller gave an interview on ABC News in which he said that the Federal minimum wage is Unconstitutional. Specifically, he said,

That is not within the scope of the powers that are given to the federal government

When asked to explain the legal basis for his conclusion he said,

"What I'd recommend that you do is go to the Constitution and look at the enumerated powers because what we have is something that we call the 10th amendment that says, look if it's not there if it's not enumerated, then it's delegated to the states," Miller said. "Everything that's not there is reserved to the states and the people."

Well, maybe not so much. In 1941 the Supreme Court, in a unanimous opinion in the case US v Darby Lumber Company upheld the Constitutionality of the Fair Labor Standards Act (FLSA), the law that established the Federal minimum wage. The FLSA also guaranteed time-and-a-half for overtime in certain jobs, and prohibited most employment of minors in "oppressive child labor."

Now Mr. Miller is entitled to the view that the minimum wage is bad policy and he may disagree with the Darby decision, but he is not entitled to the view that the law is Unconstitutional. As a guy who allegedly graduated from Yale Law School (what is it with these Yalies these days) he should know that since the decision in Marbury v Madison in 1803, it is settled law that the Supreme Court is the final arbiter on the question of whether a law is Constitutional. He can agree with or disagree with Supreme Court decision, but if the Court decides that a law is Constitutional that is the final word until such time as the Court reverses itself, which happens but rarely.

Now what about Mr. Miller's brilliant 10th Amendment insight. Did the Court ignore that issue in the Darby decision? Hardly. It was addressed straight on and ripped to shreds.

Our conclusion is unaffected by the Tenth Amendment, which provides:

"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."

The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment, or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers. See e.g., II Elliot's Debates, 123, 131; III id. 450, 464, 600; IV id. 140, 149; I Annals of Congress, 432, 761, 767-768; Story, Commentaries on the Constitution, §§ 1907-1908. Bolding Added

Got that Mr. Miller and all you other tenthers, "The amendment states but a truism that all is retained which has not been surrendered."

The Court found ample basis for upholding the law in the Commerce clause of the Constitution. Here are a few select provisions in the opinion.

The power of Congress over interstate commerce "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution." Gibbons v. Ogden, supra, 22 U. S. 196. That power can neither be enlarged nor diminished by the exercise or nonexercise of state power. Kentucky Whip & Collar Co. v. Illinois Central R. Co., supra. Congress, following its own conception of public policy concerning the restrictions which may appropriately be imposed on interstate commerce, is free to exclude from the commerce articles whose use in the states for which they are destined it may conceive to be injurious to the public health, morals or welfare, even though the state has not sought to regulate their use. Reid v. Colorado, supra; Lottery Case, supra; Hipolite Egg Co. v. United States, supra; Hoke v. United States, supra.

This is a very sweeping view of the Constitution, which though slightly eroded by subsequent decisions is still largely intact. And here the Court discusses the motive for the law which is as valid today as when it was enacted in 1938

The motive and purpose of the present regulation are plainly to make effective the Congressional conception of public policy that interstate commerce should not be made the instrument of competition in the distribution of goods produced under substandard labor conditions, which competition is injurious to the commerce and to the states from and to which the commerce flows. The motive and purpose of a regulation of interstate commerce are matters for the legislative judgment upon the exercise of which the Constitution places no restriction, and over which the courts are given no control. McCray v. United States, 195 U. S. 27; Sonzinsky v. United States, 300 U. S. 506, 300 U. S. 513, and cases cited.

So Mr. Miller, you may want to go to a world prior to 1803, when there was no arm of government that was the final voice on the meaning of the Constitution, a world where every law was Constitutional or Unconstitutional depending on who you asked, a world in which uncertainty and gridlock could have ruled. Or you may want to go back to a world prior to 1941 when it was not clear whether the FLSA and its provisions governing the minimum wage where Constitutional. But one thing you cannot do, is claim that those issues have not been decided. I would have thought you would have learned that in your Yale Law School if not earlier in your eighth grade civics class.

Beyond Mr. Miller, and the baggers' deficiencies in civics education, there is a larger concern. Most Federal laws governing economic activities are grounded at least in part in the authorities of Congress derived from the Commerce Clause. The right and their supporters in the Supreme Court have been attacking the Commerce Clause for years. That attack can be seen in Miller's argument where he would basically say all commercial activity can only be regulated by the states. That's food, drugs, health, safety, you name it. The stakes are huge. Hardly any aspect of our lives would be unaffected if they had their way. They would take us back to the pre-Constitution days of the Articles Of Confederation. There is a special irony in their arguments since the absence of power to regulate commerce between the states was one of the principle reasons why the Articles were replaced by our current Constitution.

This is the right's way to undo a Century of progressive Federal legislation. The stakes in this and every election are high. Please encourage all your friends to vote and do what ever else you can to get out the vote.

Bloomberg's Moving Speech on the Mosque

Mayor Michael Bloomberg gave a very thoughtful and moving speech today in support of the Mosque near the World Trade Center site. Every once in a while he gets it right and this was one of those time. There were several themes in the speech, but I found three of them very compelling.

He talked about the struggle for religious freedom in New York in a historical context. First he discussed the struggles of Jews and Quakers,

“In the mid-1650s, the small Jewish community living in lower Manhattan petitioned Dutch governor Peter Stuyvesant for the right to build a synagogue, and they were turned down. In 1657, when Stuyvesant also prohibited Quakers from holding meetings, a group of non-Quakers in Queens signed the Flushing Remonstrance, a petition in defense of the right of Quakers and others to freely practice their religion. It was perhaps the first formal political petition for religious freedom in the American colonies, and the organizer was thrown in jail and then banished from New Amsterdam.

Then, to show that bigotry had a long reach in terms of years and religions, he discussed the anti-Catholic animosity,

“In the 1700s, even as religious freedom took hold in America, Catholics in New York were effectively prohibited from practicing their religion, and priests could be arrested. Largely as a result, the first Catholic parish in New York City was not established until the 1780s, St. Peter's on Barclay Street, which still stands just one block north of the World Trade Center site, and one block south of the proposed mosque and community center.

He explained how we as a nation have grown beyond that and why the bigotry of the past was anathema to Americans today. He specifically talked about the first responders who died on 9/11 and why denying the religious liberties of Muslims would be an insult to their sacrifice,

"On Sept. 11, 2001, thousands of first responders heroically rushed to the scene and saved tens of thousands of lives. More than 400 of those first responders did not make it out alive. In rushing into those burning buildings, not one of them asked, 'What God do you pray to?' (Bloomberg's voice cracks here a little as he gets choked up.) 'What beliefs do you hold?'

"The attack was an act of war, and our first responders defended not only our city, but our country and our constitution. We do not honor their lives by denying the very constitutional rights they died protecting. We honor their lives by defending those rights and the freedoms that the terrorists attacked.

Finally, he put the issue in the larger context of our core Constitutional values, explaining why the World Trade Center area must always be a reflection of those values and a beacon to the world of the principles we hold dear,

“This nation was founded on the principle that the government must never choose between religions or favor one over another. The World Trade Center site will forever hold a special place in our city, in our hearts. But we would be untrue to the best part of ourselves and who we are as New Yorkers and Americans if we said no to a mosque in lower Manhattan.

“Let us not forget that Muslims were among those murdered on 9/11, and that our Muslim neighbors grieved with us as New Yorkers and as Americans. We would betray our values and play into our enemies' hands if we were to treat Muslims differently than anyone else. In fact, to cave to popular sentiment would be to hand a victory to the terrorists, and we should not stand for that.

In taking this position, Bloomberg also seems to have positioned himself against Sarah Palin and Osama Bin Laden. According to Jeffery Goldberg of the Atlantic

The Cordoba Initiative, which is headed by an imam named Feisal Abdul Rauf, is an enemy of al Qaeda, no less than Rudolph Giuliani and the Anti-Defamation League are enemies of al Qaeda. Bin Laden would sooner dispatch a truck bomb to destroy the Cordoba Initiative's proposed community center than he would attack the ADL, for the simple reason that Osama's most dire enemies are Muslims.

Bin Ladin's lunacy is well known but one has to wonder why Sarah Palin agrees with his fundamentalist bigotry.

It is time for those who sow hate and intolerance, those who have no understanding of our core Constitutional principles, to be quiet. They have spewed their vitriol long enough. We must not stand for it any more, on this issue or any other.

Frogmen, Dammit! Send In The Frogmen.

The Obama administration and British Petroleum have been stumbling around in the dark, clueless as to what to do with the Gulf leak. And the amazing thing was the solution was right at hand. Last Thursday on Hardball, Chris Matthews explained that the solution was simple. Send in the frogmen.

MATTHEWS: Well, that‘s what I‘m asking about. Is the problem getting a submarine to get—can we use our fleet of submarines to go down there and get men, frogmen, down there with torches and begin to close up that—that hole in that pipe? What is the problem, getting there? Is it the transportation to the bottom of the sea, a mile down, or is it the technology of closing that hole?

You see. It's so simple. Just get our Navy boys down there a mile below the surface with some wrenches, and blow torches and maybe some chewing gum and bungee cords and stop that damn leak.

On the Friday edition of Hardball Matthews went a bit further saying that if Captain Nemo could do it why can't we.

MATTHEWS: He says—he stands by and hectors them, but they‘re the ones responsible for fixing—I don‘t know why all the submarines in our fleet aren‘t down there. It would seem to me that Captain Nemo back in the 19th century in fiction would have been able to get down there and fix it with soldering irons and blow torches and filling up that pipe, or with cement or gravel or whatever it takes to put on top of that, just start dumping it there with our big tankers. I don‘t know why we‘re not doing it. We‘re counting on one company, a British company, to solve a problem that‘s been created in our back yard, and I don‘t quite get it.

Matthews statements demonstrate clearly the idiocy of conflating fantasy with reality and having strongly held opinions in a fact free mind. Furthermore they are evidence of the very arrogance that got us into this mess in the first place.

There are no easy fixes to an oil leak one mile beneath the surface of the ocean. If there were, it would have been implemented. But the sad truth is that the oil companies deluded themselves into thinking they could drill safely at those depths, with a faith in their technological prowess that has now been demonstrated to be a crumbling edifice of self deceit and hubris. Not to be outdone, the federal government, suffering through decades of a deregulatory environment, bought in to the concept that drilling was safe and well within our technological abilities.

But what would be comical if it were not so pathetic is the incessant blabbing we hear from pundits in the media screaming at the tops of their lungs "why isn't Obama doing more." Top among these was David Gergen who regurgitated a five-point plan this morning as if it was passed to him on some stone tablets. Well the simple fact is that all five points involve steps that the Obama administration has already taken ,as pointed out by citizen K.. There is no magic potion, there is no silver bullet.

The United States government, including its military, is not in the oil drilling business. It does not have the capacity using its own machinery and personnel to fix this leak. We can debate whether it should have had that capacity and whether funds should be spent to develop that capacity in the future, but as of today it simply doesn't exist. The government has equipment that can be helpful in dealing with this type of catastrophe but that is all. For now, we must rely on the oil companies to stop the leaks. And as far as the cleanup and mitigation of the spill, no effort should be spared but we should have no illusions. Only a small fraction of that oil will ever be contained or removed. The damage will be profound and will only be lessened by Mother Nature and the passing of time.

But go ahead Chris, keep dreaming of Captain Nemo and frogmen. But I have one suggestion. It might be best to keep those thoughts to yourself. in the words of Abraham Lincoln,

Better to remain silent and be thought a fool than to speak out and remove all doubt.

Clarence Thomas Smacked Down Like Never Before

While JUSTICE THOMAS would apparently not rule out a death sentence for a $50 theft by a 7-year-old . . ., the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

Today, the Supreme Court held, for the first time, that the Constitution prohibited sentencing a juvenile to life imprisonment without the possibility of parole for a non-homicide case. In Graham v Florida, the Court established this new rule which, for the first time, extends the special treatment of juveniles to non-capital cases. The majority opinion was written by Kennedy, with Stevens, Ginsburg, Breyer, and Sotomayor concurring. Justice Roberts, agreed that it was unconstitutional to impose that sentence on the juvenile defendant in the case, but would not have created a rule that would apply to all other juveniles in all other cases.

There are many noteworthy aspects to this decision that will have a large effect on Eight Amendment cases moving forward. But no less striking is the concurring opinion of Justices Stevens, Ginsburg and Sotomayor that contains the quotation above. It is one of the most biting and sarcastic smackdowns of a Justice one will ever read in a Supreme Court opinion. The concurring opinion is very short and is set forth in full below.

JUSTICE STEVENS, with whom JUSTICE GINSBURG and JUSTICE SOTOMAYOR join, concurring.

In his dissenting opinion, JUSTICE THOMAS argues that today’s holding is not entirely consistent with the controlling opinions in (citations omitted). Given that “evolving standards of decency” have played a central role in our Eighth Amendment jurisprudence for at least a century, (Citation omitted), this argument suggests the dissenting opinions in those cases more accurately describe the law today than does JUSTICE THOMAS’ rigid interpretation of the Amendment. Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commit- ment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete, post, at 8–9, and n. 2.

While JUSTICE THOMAS would apparently not rule out a death sentence for a $50 theft by a 7-year-old . . ., the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

The disrespect that Justices Stevens, Ginsburg and Sotomayor showed for Thomas is completely warranted by the absurdity of his opinion. His mind is so lacking in ability that it is unable to comprehend that acceptable standards of conduct and behavior can evolve over time. One would have to read his whole dissent to get the full flavor of Thomas' crimped thought processes but here is an example

The Court ignores entirely the threshold inquiry of whether subjecting juvenile offenders to adult penalties was one of the “modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted.” Ford v. Wainwright, 477 U. S. 399, 405 (1986). As the Court has noted in the past, however, the evidence is clear that, at the time of the Founding, “the common law set a rebuttable presumption of incapacity to commit any felony at the age of 14, and theoretically permitted [even] capital punishment to be imposed on a person as young as age 7.” Stanford v. Kentucky, 492 U. S. 361, 368 (1989) (citing 4 W. Blackstone, Commentaries *23–*24; 1 M. Hale, Pleas of the Crown 24–29 (1800)). It thus seems exceedingly unlikely that the imposition of a life-without-parole sentence on a person of Graham’s age would run afoul of those standards.

So if the founders thought it was OK, it's fine by Thomas. That would of course include whipping people, putting them in stocks, and, Thomas' favorite,

capital punishment for offenses ranging from “ ‘run[ning] away with . . . goods or merchandise to the value of fifty dollars, . .

One last note. Scalia and Alito signed on to Thomas's dissenting opinion but even Alito could not agree with that portion of Thomas' opinion. Hope springs eternal.

The original Constitution was flawed, and not just because of the slavery provisions.

Republican National Committee Chairman Michael Steele and some of his fellow travelers are trying to suggest that Supreme Court nominee Elana Kagan is not qualified to serve on the high court because in a 1993 law review article she wrote that the Constitution as originally enacted was defective.

Steele's criticism has been widely ridiculed because anyone with the least understanding of the issue knows that Kagan was pointing out that the original Constitution not only endorsed slavery but also provided for slaves to be counted as three-fifths of a white person for purposes of Congressional apportionment. Additionally, Kagan's article was written in honor of the then recently deceased Justice Thurgood Marshall who had made the same point in a speech in 1987 at a commemoration of the 200th anniversary of the Constitution. For this reason alone, Kagan's criticism of the original Constitution is unassailable.

But that criticism of the Constitution is manifestly valid for another reason — the original Constitution did not include the Bill of Rights, those first ten amendments that guarantee our liberties.

It is hard to imagine anyone thinking that a Constitution without the following provisions was not defective:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

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.

And yet that appears to be the position of that noted Constitutional scholar Michael Steele. Or maybe his education stopped before his first American history class. For whatever reason he doesn't know that the Constitution as originally adopted by the Constitutional Convention on September 17, 1787 and as ratified on June 21, 1788 was considered flawed by many of the framers because it did not include a bill of rights. That flaw almost kept the Constitution from being ratified.

During the drafting of the constitution there had been considerable debate as to whether or not to include specific provisions guaranteeing the rights of citizens. A proposal was made to include such provisions but it was defeated by the Constitutional convention. The issue was not whether individual rights should be guaranteed, but whether including such provisions in the Constitution was appropriate. Many framers thought that the existing bills of rights in each state had would be sufficient to protect the citizenry. There was also concern that if the Constitution enumerated certain specific protected rights that would suggest that other rights not mentioned would not be protected. The debate surrounding this issue was one of the dividing lines between the Federalists who favored adoption of the Constitution and the anti-Federalists who opposed its adoption.

After the first five states ratified the constitution, the absence of a Bill of Rights became a real stumbling block in Massachusetts. Some members of the Massachusetts Legislature opposed ratification on this ground alone and others said that the state's ratification should be contingent upon adoption of a Bill of Rights. A compromise was reached whereby Massachusetts ratified the Constitution but with strong recommendations for the adoption of a Bill of Rights. That same posture was taken by four more states. As a result, when the first Congress met on March 4, 1789 James Madison proceeded to draft a list of 10 amendments patterned on the Virginia's Declaration of Rights. These amendments which came to be known as the Bill of Rights were ratified by three fourths of the states on December 15, 1791.

To recap for the benefit of Mr. Steele, the first ten amendments to the Constitution were not enacted until three years after the Constitution was ratified and four years after it was adopted by the Constitutional Convention.

There is a special irony in Mr. Steele and his Republican cohorts ignoring this obvious deficiency in the original Constitution - the original Constitution did not contain their two favorite provisions.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment X

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.

Imagine that. According to Mr Steele a Constitution without the right to bear arms would be a perfect document. And that document would not be in the least defective if it was silent on the rights reserved to the states and the people. Oh yes. The document would also be perfect if people could own slaves and if slaves counted as three-fifths of a white man for purposes of Congressional representation.

Who Is Our Biggest Creditor? Hint: It's Not Japan or China

There has been debate lately about foreign countries holding our national debt, and particularly whether China or Japan is our largest creditor. The numbers seem large for sure. As of January 1, 2010, China owned $889 Billion and Japan owned $765 Billion of our $12.6 Trillion national debt. But guess what? In the world of national debt holders those countries are mere pikers.

As of January 1, 2010, Social Security taxpayers owned $2.54 Trillion of that debt, more than Japan and China combined. And even those much reviled Federal Employees owned $780 billion of the debt. In fact, of our $12.6 Trillion national debt, over one-third, $4.5 Trillion, is actually inter-governmental borrowings and most of that is borrowed from trust funds like Social Security which have an accumulation of excess tax payments.

A list of these funds and their current account balances can be seen on pages 24 and 25 of this Treasury report.

So why is it that over a third of our national debt is not owed to people who invested in treasury securities but rather to people who have been overpaying taxes and fees to the government for many years? The answer is simple. The United States government has been under collecting income taxes for decades and has been masking the size of the deficit by borrowing money from people who pay Social Security taxes, Medicare taxes, Railroad retirement withholding, federal employee retirement withholding and myriad other taxes and fees .

Now the theory behind what has happened to Social Security and the other trust funds is not bad. For instance Social Security used to be a pay-as-you-go system, where tax payments were received and almost immediately paid out to beneficiaries. Since such a system is not fiscally prudent, in 1983 the program was amended to increase the amount of Social Security taxes paid and lengthen their retirement date in order to develop a reserve of funds they would be available to provide to beneficiaries in the future when the baby boomers retired.

It was fiscally responsible. But this is where the twist comes in. What was the government to do with all this excess money, which as discussed above has now grown to $2.54 trillion. Well, it could invest that money in the stock market, or it could invest it in overseas bonds, or it could simply lend the money to the Treasury and thereby reduce the amount of public borrowing the Treasury would have to do in years when we were running a deficit.

Of course, Congress chose the last option, since that is by far the most prudent. It would not be feasible for the federal government to invest Social Security funds in the stock market without incurring real or imaginary criticism for manipulating stock prices. Moreover, it would not be responsible to do so since Social Security is the safety net for retirees, the guarantee that no matter what else happens to their other investments they will always have a benefit that can be counted on. Similarly it would make no sense to invest in the bonds of other countries rather than our own.

Consequently, every time the treasury took in more Social Security or other trust fund taxes than were to be paid out that year it borrowed those excess amounts. Each trust fund was issued a certificate every time this borrowing took place that show the amount borrowed and the interest rate that would be paid on the instrument.

All of this makes tremendous sense as long as the Congress and, for that matter, the people who pay income taxes, remember that this money has to be repaid. But we never hear discussion of that. Rather, when the Federal government runs huge deficits, all we hear is that we needed to enact "entitlement" reform. What are they saying when they talk about entitlement reform? They are definitely not talking about increasing income taxes to pay back Social Security taxpayers for all the money that has been borrowed. No, they talk about increasing Social Security taxes again or delaying the retirement age again.

According to the 2009 Social Security Trustee's Report, Social Security taxpayers will continue to pay into the Social Security trust fund more each year than is withdrawn from the fund until approximately 2016. (Due to the recession, that will not be the case this year, but excess payments should resume next year.) It should be noted that the 2009 trustees report contained projections that were more pessimistic than in prior years. This is particularly noteworthy because, as a general rule, the trustees have been very conservative in their projections. Their analyses are based on estimates of population growth, inflation, gross domestic product, interest rates, and other factors that influence the amount of money coming in to the Social Security trust fund as well as the amount of money being paid out. Historically they have always made their projections based on very conservative analysis. This is illustrated by the fact that the current projection that the trust fund will not be exhausted until 2037 is almost 2 decades later than the 2018 projection that was made when the 1984 changes were enacted.

Assuming the current Trustee projections are correct, beginning in 2016 Social Security tax receipts will not be enough to make payments to beneficiaries and the Social Security program will have to start redeeming those instruments that were issued by the Treasury. Based on current projections ongoing tax payments plus bond redemptions should be enough to make full payments to Social Security recipients through 2037. At that point there would have to be a 24% reduction in Social Security payments for a period of years before the fund would return to balance. Remember, though, that would not be a reduction from the level of payments made today, but rather the higher inflation adjusted payments that would be made in 2037. The fact that there could be a problem beginning in 2037 may suggest that some minor changes should be made to the Social Security program today to ward off that eventuality. However, before we address the 2037 problem we need to address the 2010 problem.

It should be noted that many Republicans, who have been opposed to Social Security since its inception, continue to lie about Social Security. For instance, Jane Norton, no relation thankfully, who is running for to become a Senator from Colorado, recently called Social Security a ponzi scheme,

"With regard to Social Security, it has turned into a Ponzi scheme. The money that people pay into it should be there for when they are ready to retire."

Well, nothing could be further than the truth, but I guess poor Jane would never let fundamental facts get in the way of her anti-government crusade. Sadly, though, she is not alone. Most people have no idea that Social Security taxpayers have been building a nest egg. It is income taxpayers who have been underpaying taxes.

Some may ask, "well aren't Social Security taxpayers and income taxpayers the same?" The answer is that while there is some overlap they are not the same. Social Security taxes are only paid on wages and they are only paid on wages below $106,800. Moreover, Social Security taxes are paid on wages without regard to the number of dependents you have or whether you are earning the minimum wage. In contrast income taxes are reduced based on the number of dependents you have and the amount of income you earn. In addition all of your income over $106,800 and, more importantly all of your income subject to capital gains taxes is exempt from Social Security taxes. That means the richest Americans pay tiny fraction of their income in Social Security taxes, while the working classes pay a substantial amount.

In fact, the amount of Social Security taxes paid by wage earners is much higher than they realize. The amount of Social Security taxes deducted from your wages is 6.2% and there is an additional 1.45% deducted for Medicare. What most people don't recognize is that your employer matches those amounts. That means a total of 12.4% of your wages is paid for Social Security and 2.9% for Medicare. Most economists agree that if the employer did not have to pay his portion of Social Security or Medicare taxes, those amounts would be added to the employees wages. That is why the real tax rate wage earners pay for Social Security and Medicare is twice what they think it is.

But the wealthy in our society such as the top 400 income earners, don't have to worry about any of this because virtually all of their income comes from capital gains, not wages. Consequently, they pay very little in Social Security taxes as a percentage of their overall income. Additionally, their income tax rate is generally the capital gains tax rate of 15%, which is less than half the top tax rate of 35% paid on wages. That is why the universe of Social Security taxpayers and income taxpayers is very different both in terms of who is in each group and what overall percentage of their income they pay in taxes.

Whenever I hear someone who claims to be concerned about fiscal responsibility that we need entitlement reform but not a word about the income tax deficit, I can do little but shake my head. Approaching our nations fiscal problems that way is akin to a man whose house is on fire and who also has a crack in his basement. Rather than put the fire out, he decides to address the long-term problem by shoring up his foundation. That makes no sense for the homeowner and it makes even less sense for the federal government.

It is time to increase collections of income taxes in order that our tax structure will generate enough to redeemed the Treasury instruments that had been issued to the Social Security and other trust fund programs as needed to pay the beneficiaries of those programs. Only after the Congress and the people have shown the political will to do that should we go after the much longer term problem with Social Security.

The Auto "Bailout" Debate Is Prologue To What Obama Faces In The Next Congress

The Detroit auto company "bailout" is the beginning of the debate Obama will be facing in the next Congress. We are in a recession and possibly heading to a depression. The questions we face now, and in the coming months, revolve around what, if anything, the Federal government should do in response to this economic crisis.

The battle lines involve some familiar themes. Should the Government spend money? If so should it be through Republican favored tax cuts, for both wealthy individuals and corporations, or should the pump be primed directly with spending on projects and programs that create or preserve employment? Second, should the government actions promote well paying jobs, including unionized jobs, or should we go for the cheapest labor possible, with the secret hope of busting the union movement? Lastly, do we want to help people in this time of crisis or fiddle around enough so that the economy continues to slide with the hope of regaining lost seats in the next election and in the 2012 Presidential race?

These issues are at the core of the current debate and will be front and center when President Obama proposes new spending on Infrastructure, health care, and other priorities and revisions to the existing tax policies that favor wealth, capital, and the wealthy.

I don't carry any brief for Ford, Chrysler and GM. Many of their past actions have created the vulnerabilities they now face. But they are charting a new course. More importantly, they are an integral part of our manufacturing base. One can argue the outcome of one or more going into Chapter 11 bankruptcy. But these things are inarguable. The union contracts will be gone and with them the hope for revitalizing the union movement. That will be the sweetest victory long hoped worked for by Republicans for decades. More importantly, it will accelerate the race to the bottom for all wage earners in our country. Make no mistake, this is a source of the major divide in the current debate. And when the infrastructure debate occurs next year there will be a big push for the projects not to be built with people in unions or earning union prevailing wages.

I need to digress a little by mentioning two points. Labor costs are not the issue. The companies and the UAW agree that labor costs represent only about 10% of the cost of a new car. That said, the average UAW wage is not $70. It is about $30 and is only about $5 higher than the wages paid by foreign transplants. The real differences are these. UAW health coverage is better than in the transplants and union retirees are not thrown onto the national trash heap in their old age. Those things do cost more money and are built into the cost structure of the big three. But consider the alternative. If bankruptcy occurs and the pension obligations are dissolve, the Pension Benefit Guarantee Corporation will have to pick them up. PBGC payments are lower and since it is currently underfunded, taxpayers will end up having to cough up more money.

The second point relates to Michael Moore's proposal to just buy up all their stock. Yes, that could be done for about $4 billion. But then what? The companies would still need the money they are currently asking for to service their current debt and continue operating. Yes, it would enable the Government to put in new management, but that can already be done under the current proposals by establishing an oversight board with the power to remove existing personnel.

There are those in Congress who are saying "no" to this proposal and will oppose President Obama's ambitious agenda to put this country back to work. Many of them simply do not believe that is the role of government. Others believe there is political advantage for them in this position. Generally, they will oppose anything.

There is another group will only support "supply side" actions. They cling to the failed dogma made popular by Reagan but still largely accepted. It holds the only way to increase national wealth is to cut taxes, which will spur economic growth and benefit all eventually. After almost thirty years of following this prescription the results are plain to see. The gap between the rich and the middle class has widened and the continual underfunding of public works has not only killed and endangered people, but is crippling our productivity with bad roads, clogged ports, drowned cities, and an electric grid and telecommunications system far behind many of our competitors.

The financial bailout was the most recent example of supply side at work, this time on steroids. Under the threat of impending doom we passed a law designed to pump money into the top of the economic pyramid in the expectation that it would trickle down and free up credit for average people. We're still waiting for that promised result. We have seen these institutions hoard the money or use it to acquire competitors. It is time to blow the whistle on the supply siders and say no more. Moving forward we need to inject money directly where it is needed.

The auto industry presents us with the opportunity to change course and lay the groundwork for future actions. Loans to these companies will do several things. It will directly benefit the current employees and retirees. It will give the government leverage to make the companies maintain their new focus on more energy efficient vehicles. This is especially important with oil prices declining since consumer memories have historically been short. It will be a leverage point for building a domestic industry that leads the world in alternative fuel vehicles. Lastly, the inevitable disruptions cause by bankruptcy of the companies which could accelerate a slide into a depression would be avoided.

Hamdan Released- Even Bush Knows The Gig Is Up

As first reported last night and confirmed this morning Salim Hamdan has been flown back to Yemen. There was considerable concern that Bush would continue to hod him in Guantanamo even after he served his sentence but it seems that even Bush understands there are limits to his outrageous conduct.

Hamdan has been imprisoned in Guantanamo for seven years. He was the first to actually be tried by a Military tribunal. But the tribunal refused to convict him of most of the spurious charges against him, convicting him of only one count and, most importantly, sentencing him only to time served plus five months. This was widely seen as a rebuke to the prosecutors. But at the time, there was concern that Bush would continue to hold him past his sentence, based on his asserted authority to hold enemy combatants for the duration of the so-called war on Terror.

Well, for once Bush has thrown in the towel.

What was Hamdan's big crime? He worked as a driver for Osama bin Laden for a while. Now let's put this crime in perspective. Hitler had a driver named Erich Kempka. Unlike Kempka who was a high ranking SS officer who worked for Hitler for over a decade, Hamdan worked for a couple of years for OBL making $200 a month. Hamdan was a gofer. Kempka was in charge of Hitler's motor pool and was part of his inner circle, to the point that he was one of the men chosen to be with Hitler at the end. Kempka was not charged with anything by the Nuremberg court and, in fact, was called a defense witness in the trial of Martin Bormann.

But for Bush, Hamdan was one of the "worst of the worst." A man so dangerous that he had to be held in the hellhole of Guantanamo for seven years and eventually tried for things that are only crimes in Bushworld. This notwithstanding the fact that

Hamdan had maintained his innocence of war crimes throughout his detention. Then, during sentencing, he apologized for any pain caused by his work as bin Laden's $200-a-month driver in Afghanistan.

He said he worked for money, not ideology.

The sentence of the court meant that Hamdan was to be released on December 27, 2008, two days after Christmas. The "leniency" of this sentence did not go over well with the Department of Defense.

Defense officials had argued they were under no obligation to free him after his sentence. Under a post 9/11 detention doctrine set up by the United States, the Bush administration argued that it could hold enemy combatants indefinitely, even after time served for war crimes.

Since then they have reconsidered the absurdity of that position. The outrage of holding people without trial is bad enough. But to assert that prisoners can continue to be held even after they have been tried and served any sentence they are given is so far beyond the pale that even these bozos had to relent.

Over five hundred Guantanamo prisoners have been released without charges. Of the 250 being held another sixty have been cleared for release. And just earlier this week, a District Court overturned the "enemy combatant" of Boumediene and four other prisoners, ordering their release "forthwith." We'll see if the decision to finally release Hamdan indicates that Bush will accede to the court's ruling in the Boumediene case or whether he'll drag that case out till he slinks away.

The Guantanamo Decision-A Stark Truth Revealed

November 20, 2008 was a long awaited but still historic day. For the first time, a US Court has heard and decided on Habeas Corpus petitions of Guantanamo prisoners. Guess what? It held that Bush had no evidence to detain five of the six men in question.

This decision, Boumediene v Bush, reveals again, in starkest terms, the total injustice that has been done in our names in the so-called War on Terror. Not only have almost five hundred prisoners who Rumsfeld once called the "worst of the worst" already been released without charges, but here we have an impartial court saying that five of the ones that Bush has refused to release are being held illegally. The evidence against them is so flimsy that it does not justify holding them for trial.

In this ruling the Bush Administration was ordered to release five Algerians who have been held at Guantanamo for seven years. Unlike so many other cases in the past that have involved interpretations of the Constitution and various statutes, this case was decided on the facts. In these Habeas Corpus cases, the question was not whether these prisoners were guilty or innocent, but rather whether there was sufficient evidence to justify their continued detention until they could be tried at a later date. The court's decision is a resounding "no."

Lakhdar Boumediene was one of the six prisoners who filed habeas corpus petitions. Earlier this year the Supreme Court ruled that he had a right to seek Habeas Corpus review of his detention even though he had been declared an "enemy Combatant" under the Military Commissions Act. That decision, which was the latest in a string of defeats for Bush, was hailed by all people who believe in our Constitution and who seek a return to long held American values. Six months later Boumediene and the others received their day in court and the injustice of their detention was laid bare for the world to see. Following is some background and the gist of the court's ruling.

The six prisoners are Algerians who were arrested in Bosnia for an alleged plot to blow up the US embassy. A Bosnian court looked at the charges and threw the case out. That didn't stop the US from arresting them on the same charges. Eventually, even Bush dropped the Embassy charges and held them instead on charges that they were planning on traveling to Afghanistan to fight the US.

The Government blew a cavern full of smoke in this case, introducing 650 pages of exhibits and 53 pages of narrative. To counter this barrage of baloney, the prisoners presented 1650 exhibits and over 200 pages of narrative. The question before the court was simply whether these men could be classified as "enemy combatants," as defined by the MCA. The standard of proof was as low as you can go. It's called "preponderance of the evidence" and is essentially a 51% to 49% test. Is it more likely than not that they are enemy combatants?

When all was said and done, Judge Leon said the whole case boiled down to the evidence of one unnamed source contained in a single classified document. The whole case was built on what this one person said. Since no person, let alone a judge, can simply take any statement at face value, Judge Leon tried to look further into the veracity of this witness and the truthfulness of what he said. Analyzing the entire record, the Judge concluded that there was no evidence presented regarding the credibility of the witness or the reliability of what he said. Beyond that, there was no other evidence corroborating the allegation that the prisoners had any plan to fight in Afghanistan.

Think about that a minute. Five people were imprisoned in the hellhole of Guantanamo for more than seven years on the testimony of a single unnamed person, whose truthfulness could not be verified and without a single bit of evidence to corroborate what he said. To call this a miscarriage of justice is a gross understatement. And to put the travesty of Bush's concept of justice into starker relief, one of his Military Commissions had already held that this was sufficient evidence to continue the imprisonment of these men. If anyone doubted that the commissions are little more than kangaroo courts this case should resolve those doubts.

Judge Leon was sufficiently moved by the injustice done these men that he asked the government not to appeal the case. As noted by SCOTUSBLOG,

The judge, in an unusual added comment, suggested to senior government leaders that they forgo an appeal of his ruling on freeing the five prisoners. While conceding that the government had a right to appeal that part of his ruling, Leon commented that he, too, had “a right to appeal” to leaders of the Justice Department, Central Intelligence Agency and other intelligence agencies, and his plea was that they look at the evidence regarding the five he was ordering released. “Seven years of waiting for our legal system to give them an answer to their legal question is enough,” he commented.

Senior leaders of the government, he went on, will have “more than enough opportunity” to test the novel issues at stake in defending against an appeal of his ruling in the case of Bensayah. He said he was appealing to those leaders “to end this process” for the five.

Amen to that.

There continues to be handwringing in some quarters about the closing of Guantanamo, particularly what to do with detainees. This case again demonstrates that the detainee issue is overblown. Almost five hundred have already been released. To the extent the case against these five is any indication, it is probable that there are only a handful of remaining prisoners who should continue to be held and prosecuted.

Palin's Alaska - A State Unlike Any Other

[Before beginning, I give you these numbers - 1841, 1850, 1865, 1881, 1901, 1923, 1945, 1963.]

Many people have pointed out that the closest thing to foreign policy experience for Sarah Palin is when she eats Belgian Waffles at the Wasilla International House of Pancakes. Similarly, it has been noted that she has zero experience in the domestic issues facing the Federal government. But there is something arguably worse. She hasn't had the kind of experience faced by most State governors.

Sarah governs a state like no other. When you put aside all the little hot button issues, most decisions that state governors and legislatures face revolve around two sets of questions. First is the question of revenue. Who should be taxed and how much should they be taxed? Second is the question of expenditures. What programs should get the money and how much should they get? Well, when it comes to the first set of questions, the most difficult ones, Sarah's experience leaves her uniquely unqualified to be the governor of any other state let alone, heaven forbid, the United States.

Here is the resource book published by Alaska's Department of Revenue in the fall of 2007. It shows actual revenues and expenditures for 2007 and projections for 2008 and 2009. Let's look at the 2008 numbers.

For 2008 Alaska plans on collecting $13.2 billion. Half of that amount, $6.6 billion, comes from oil taxes. $3 billion comes from income on all the investment the state has. $2.5 Billion comes from the Federal government. The smallest category, $1.1 billion, comes from licenses, fees, royalties and taxes on mineral companies and the like.

Of the many things that jump out is the $3 Billion in investment income. The United States has almost $10 Trillion dollars in outstanding debt that will require us to pay more than $450 billion in interest on the national debt in 2008. The deficit for just this year is over $400 billion. And of that amount $2.5 billion is money that we borrowed so that we could give it to Alaska, a State that is so awash in cash that it earns $3 billion on its investments. The mind is past boggling.

Next, look at the oil revenue, $6.6 billion. This number is actually much lower than the actual number of $8.9 billion for 2008. That number grew so much because the Alaska's taxes are tied to the price of oil. As oil prices go up, oil company revenues go up and Alaska demands a piece of the action. Sounds an awful lot like a windfall profits tax, doesn't it. That's the kind of tax Obama wants to enact but Mccain opposes. McCain argues that such a tax would stifle new exploration. Of course, we know that is total baloney as made clear by the Alaska experience. Alaska's profits tax on oil hasn't stopped the oil companies from exploring in Alaska. I'd love to see Palin explain why something so good for Alaska is bad for the United States. But I digress.

The main thing this budget reveals is that Palin has never had to face the hard choices about who to tax and how much to tax that are faced in the other states and magnified a thousand fold for the Federal government. She has no knowledge of the complexities of the income tax code. Her experience has not exposed her to the concept of an individual income tax structure that is supposed to be progressive, one in which the tax burden is the largest on those most able to bear it. The Republicans have done their best since 1980 to whittle away at this concept, but it is an idea that is totally foreign to Alaska.

She doesn't have any exposure to the social security and medicare tax system and how they are integral to the welfare of our seniors. She doesn't really know anything about the corporate tax system, which has a marginal rate of 35% but results in an effective tax rate that is far less and in which two thirds of corporations pay no taxes

When you leave the foreign affairs realm, many of the most contentious debates a President face involve the budget. Where to get the money for Head Start, health care, education, environmental protection and on and on. No one wants to pay taxes, but someone must. Sarah lives in a state that is riding the type of gravy train that has immunized her from having to face these tough choices. It is hard to imagine anyone less qualified to serve as President of the United States.

Oh, yes, the numbers at the beginning. Those are the years in which a President has died in office. Eight Presidents have died in office. Every one of those events has been tragic. That tragedy is compounded immeasurably if the Vice President is unqualified to take the reins of government.

Court Rules That No Fly List Can Be Challenged

The Ninth Circuit ruled that a person can challenge the inclusion of their name on the government's no fly list. Sounds pretty obvious that you should have that right, but that isn't the Bush Administration's position.

The case is Ibrahim v Department of Homeland Security and it was decided by a two to one decision of the Ninth Circuit Court if Appeals.

Ms. Ibrahim was a Stanford student on a student visa from Malaysia, who also happens to be a Muslim. When she tried to fly home from San Francisco, she was blocked from boarding the flight, detained and handcuffed in front of her fourteen year old daughter, and taken to a police station. Two hours later she was released and she was permitted to fly home the following day after being subjected to "enhanced searches."

The suit was filed against numerous agencies and individuals alleging a range of violations, from Constitutional due process to violations of the Administrative Procedures Act. Basically all of her claims were denied in the District Court, which is the first level trial court in the Federal system. The Court of Appeals reversed two critical aspects of the trial court's decision. First, it held that the trial court did have jurisdiction to here the issue of whether her name was wrongly placed on the list. Secondly the court held she could pursue a claim against a TSA employee, John Bondanella, in his personal capacity, for his actions in connection with her detention.

This is a complex case involving questions of jurisdiction and statutory construction. (The Constitutional issues were not addressed.) The government was arguing that any challenges of this sort could only be filed in an appeals court. But the Ninth Circuit disagreed, holding that the statutory provision in question, 49 USC 46110, did not apply in this case because the no fly list is maintained by the Terrorist Screening Center, which is part of the FBI and therefore not covered by that statutory provision. Beyond the technical question, which is a close call, the Court looked at the practicalities of the case.

Our interpretation of section 46110 is consistent not merely with the statutory language but with common sense as well. Just how would an appellate court review the agency’s decision to put a particular name on the list? There was no hearing
before an administrative law judge; there was no notice-and- comment procedure. For all we know, there is no administrative record of any sort for us to review. See Florence, supra, at 2155-59 (the process of maintaining the No-Fly List is opaque). So if any court is going to review the government’s decision to put Ibrahim’s name on the No-Fly List, it makes sense that it be a court with the ability to take evidence.

It remains to be seen what impact this decision will have and whether it will be appealed. But is once again puts at issue the entire question of whether there should even be these kinds of lists and if they are to be maintained how can it be done in a way reasonably consistent with civil liberties.

I believe a no fly list makes no sense. If someone is a real threat based on real evidence they should be investigated and prosecuted. If there is no evidence of wrongdoing they should be free to conduct their affairs like any other citizen. If the authorities have reason to believe someone is going to bomb a plane, they can be detained and prosecuted. But having a list of hundreds of thousands of names of people who might have talked to someone who talked to someone who read a book about terrorism is idiotic. It not only abuses the rights of innocent people but also diverts recourses from meaningful activity. It is all done in the interest of creating an illusion of security, nothing more.

Three More "Worst Of The Worst" Are Freed, With An Orwellian Explanation

The Department of Defense announced today that three more Guantanamo detainees have been released. We don't know their names but one was sent to Afghanistan, another to the UAE, and the third to Qatar. These are three more of the five hundred prisoners who Donald rumsfeld labelled as the "worst of the worst" who have been released from Guantanamo without charges. According to DoD there are 265 left to go.

This announcement is good news for these prisoners but what is really remarkable is the language used by DoD in making the announcement. First, there is this,

These detainees were determined to be eligible for transfer following a comprehensive series of review processes.

Comprehensive review process? It's been six years. We prosecuted and won victory in WWII in three and a half years but it takes six years to finally figure out these poor schmucks shouldn't be in custody. If it gets any more comprehensive they'll be sending these guys home with walkers.

But not to rest on its laurels, the release goes on,

The transfer is a demonstration of the United States’ desire not to hold detainees any longer than necessary. It also underscores the processes put in place to assess each individual and make a determination about their detention while hostilities are ongoing — an unprecedented step in the history of warfare.

"No longer than necessary?" Who are they kidding? Everything they knew about these guys was made known soon after their capture. If they are like the typical Guantanamo detainee they were not captured on a battlefield. They were guys who were turned over by bounty hunting Pakistanis and Afghanis looking for a quick buck. Most of them were foreigners going to schools or passing through, and some were locals against whom Afghanis had familial or clan grudges.

But especially rich is the crowing about this wonderful process, which is claimed to be unprecedented in the annals warfare. Damn right it is unprecedented. We pay bounty hunters to round up people and gin up some "evidence" about their supposed misdeeds. We hold and torture them for a while before shipping them to Guantanamo where they get more of the same. They are isolated for long periods, interrogated endlessly, and after six years we say "OOps," you are no longer a threat.

The press release goes on to say that another 65 of the remaining 265 prisoners are eligible for release. And so far people have been released to the following countries,

Albania, Algeria, Afghanistan, Australia, Bangladesh, Bahrain, Belgium, Denmark, Egypt, France, Great Britain, Iran, Iraq, Jordan, Kuwait, Libya, Maldives, Mauritania, Morocco, Pakistan, Russia, Saudi Arabia, Qatar, Spain, Sweden, Sudan, Tajikistan, Turkey, Uganda, United Kingdom, United Arab Emirates, and Yemen.

What about the ones not yet cleared for release. Well, one is a guy named Hamdan who is currently on trial. Unlike the other 500, he actually had a connection to Al Qaeda, but his "crime" seems a little tenuous. He was nabbed for having been Osama bin Laden's driver. Here at the ACLU's website is an update on what happened at the trial today. Actually, they watched a movies prepared by the DoD which depicts the evils of AQ, but doesn't say anything about the actual case that is being tried.

If these prosecutors had any sense of history they would understand the true pathos and tragedy of this case against OBL's driver. In 1945 the US took the lead in prosecuting the surviving members of the genocidal Nazi regime. Anything OBL has done pales in comparison with what Hitler and his minions did. There was one person, though, who was not prosecuted — he was Hitler's driver. That man's name was Erich Kempka who, in addition to being Hitler's driver, was also an SS officer who was with Hitler from 1934 all the way to the last day in the bunker. Not only was he not tried at Nuremberg, he was a witness for the defense of Martin Bormann

In the words of the DoD press release our actions in Guantanamo truly are "unprecedented."

Ninth Circuit: Supreme Court Handgun Case Doesn't Cover All Weapons

The Ninth Circuit issued an unpublished decision in the case U.S. v Gilbert on July 15 holding that the recent Supreme Court Second Amendment case does not give people the right to own automatic weapons and sawed off rifles. The court stated

The Supreme Court’s recent decision in District of Columbia v. Heller, 554 U.S. ___ (2008), holding that the Second Amendment protects a limited individual right to possess a firearm–unconnected with service in a militia–does not alter our conclusion. Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did, and convicted felons, such as Gilbert, do not have the right to possess any firearms. Id., Slip. Op. at 27.

Since the Supreme Court decided the Heller case there has been much speculation regarding the scope of the ruling. Would this open the flood gates to unrestricted ownership of handguns and permit the ownership other types of weapons, like assault rifles. The Ninth Circuit opinion says that it does not.

The facts in Gilbert are straight forward. Gilbert was charged with ten counts involving owning a machine gun, owning unregistered firearms, and being a felon in possesion of a firearm. He said he knowingly bought some of the weapons from undercover agents because he wants to challenge the Constitutionality of the gun laws. At the end of the trial the jury was given the following instruction,

A person does not have the right under the Second Amendment, or under any other provision of the Constitution, to possess a machinegun. A person does not have a right, under the Second Amendment, or under any other provision of the Constitution, to possess a rifle with a barrel shorter than 16 inches that the person has not registered in the National Firearms Registration and Transfer Record.

Gilbert appealed his conviction arguing that the jury instruction violated his Second Amendment rights.

The Ninth Circuit did not buy his argument and, as noted above, said that the Supreme Court's Heller decision articulates a limited individual right to possess a firearm that does not extend to machine guns, short barreled rifles, or to the ownership of weapons by felons.

Unfortunately, the Gilbert opinion is very short and does not include an explanation of why the court read the Heller decision in this limited way. But, beyond the limitations of the ruling itself, there is ample language in the Heller case to support this reading of the decision.

Like any case, the Supreme Court's Heller decision itself was limited to the facts of the case, which was the ownership of a handgun by a non-felon, who had not been judged mentally incompetent. However, there was much discussion in the dicta of the opinion where the majority not only says this is a limited right but also discusses areas where government regulation would not conflict with the Second Amendment.

Here is an excerpt from an article I wrote discussing the limitations in the Heller opinion.

Much will be written on the subject as we have a chance to digest the language of the opinion. But these statements from the majority opinion should allay fears that the doors have been opened to unrestricted gun ownership.

At the outset, the Court says that it's longstanding opinion in United States v Miller is still valid but clarifies the scope of that decision.

We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

The court is protecting weapons held by law abiding people for lawful purposes. Self-defense is the lawful purpose the court is upholding. The court also limits the protection to the types of weapons that a militia man would have in his home at the time of the founding.

We also recognize another important limitation on the
right to keep and carry arms. Miller said, as we have
explained, that the sorts of weapons protected were those
“in common use at the time.”

That does not mean the Court is sanctioning the types of weapons a soldier would use today.

It may be objected that if weapons that are most useful
in military service—M-16 rifles and the like—may be
banned, then the Second Amendment right is completely
detached from the prefatory clause. But as we have said,
the conception of the militia at the time of the Second
Amendment’s ratification was the body of all citizens
capable of military service, who would bring the sorts of
lawful weapons that they possessed at home to militia
duty. It may well be true today that a militia, to be as
effective as militias in the 18th century, would require
sophisticated arms that are highly unusual in society at
large. Indeed, it may be true that no amount of small
arms could be useful against modern-day bombers and
tanks. But the fact that modern developments have lim-
ited the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of the
right.

The decision goes on to make clear that the Amendment does not prohibit the who, what, where and why of weapons regulation.

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

For instance, it doesn't guarantee the right to carry concealed weapons.

For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.

Also the government can regulate who owns weapons and where they may be carried.

nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms

It remains to be seen how the Supreme Court ultimately refines the limits of the Heller decision. But the lower courts seem to be reading it narrowly and following the limitations that are suggested in the ruling. And lest anyone think this limited approach has only appeared in the so-called "liberal" Ninth Circuit, District Court decisions in Missouri, Johnson v U.S., and Louisiana, U.S. v Dorosan, have reached the same conclusion.

What does all of this mean for Obama and other Democrats in the upcoming election? The Supreme Court has taken off the table one of the most divisive issues that has bedeviled Democrats in many decades of elections. For decades, the NRA has used the "right to bear arms" as a major fund raising tool and rallying cry. They have been able to successfully attack sensible gun control legislation by using the absolutist argument that Democrats want to totally disarm all Americans. They will not be able to do so any longer.

The Supreme Court has decided there is an individual right to own handguns. That decision, right or wrong, will be with us for a long time. Moving forward, states and cities cannot enact laws that impose a complete ban on handgun ownership. Beyond that, however, a conservative majority of the Court, in an opinion written by Scalia, has signaled its willingness to accept most forms of gun regulation currently on the books, and the lower courts are already adopting that position.

Scalia, the darling of the NRA, has said that guns can be regulated. The Second Amendment right to own a gun does not extend any person, regardless of their background, it does not mean that any type of gun can be owned, and it does not mean a person can take a gun anywhere they wish.

The NRA won its Second Amendment battle but it will prove to be a pyrrhic victory. A powerful fundraising and campaign tool has been taken away from them. They can no longer threaten that guns will be taken away from law abiding citizens if Democrats are elected. That issue has been decided. The issue left on the table is whether we can have reasonable gun control legislation designed to protect the health, safety and welfare of our communities. As the NRA finds itself defending gun ownership by felons, possession of automatic weapons, tanks and grenade launchers, and the carrying of weapons near schools it will find itself increasingly associated with the most lunatic fringe of the movement with no Scalia or Second Amendment to fall back on.

From this point on the discussion will shift to the reasonableness of specific types of gun control. Those are arguments that progressives can win. But we still need to elect Obama and a strongly Democratic Senate to ensure that the courts continue to interpret Heller in a limited manner.

(I do recognize that Heller only applies to Federal jurisdictions and the Court has yet to rule on Second Amendment incorporation, which would make it applicable to the states. We have not had an incorporation case in a long time so that should prove interesting. While there are some peculiarities to the Second, in the end I'd be surprised if it is not made applicable to the states.)

Crossposted from docudharma