Why did Justice Ginsberg do this interview in the first place?

First, did she really think Egyptians would honor the opinion of a woman, an American, and a Jew? Isn’t that a hatred trifecta for Egypt’s vaunted Muslim Brotherhood as well as the “Arab Street”? Remember what happened to Lara Logan during the “Arab Spring” demonstrations? Why consent to an interview at all? Did she really think she’d reflect well on herself, the Supreme Court, or our country with this interview? It ended up being rather the opposite, I’d say.

Second, if Justice Ginsberg really must draw back that Wizard-of-Oz-like SCOTUS curtain, could she at least have shown a bit more respect and praise for the Constitution that she swore to preserve, protect, and defend? Evidently not.

Said Ginsberg to the Egyptians:

I would not look to the US Constitution if I were drafting a constitution in the year 2012.

I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary … it really is, I think, a great piece of work that was done.

Much more recent than the US Constitution, Canada has a Charter of Rights and Freedoms. It dates from 1982. You would almost certainly look at the European Convention on Human Rights.

Well, thank you, Madame Justice. I had no idea how inferior our Constitution was to Europe’s, Canada’s, and South Africa’s. And how noble and courageous you have been to suffer our dusty old Constitution so stoically for nearly 20 years.

But perhaps I do the Justice an injustice. What is it that Ginsberg finds so attractive in those other constitutions? Given her comments, I infer it must have something to do with what she means by “human rights”. So I looked first to the South Africa Constitution since Ginsberg singled it out as a “great piece of work.” It’s available online.

The first thing I noticed about the SA Constitution (1996) is its sheer size. The US Constitution is only 4400 words long, but the SA Constitution is over 43,700 words long. Much more stuff. And more means better? Anyway, it’s so big that I could never have read it all, so I focused mainly on Chapter 2, the SA Bill of Rights.

Our American Bill of Rights is rather short — just those first ten tersely worded amendments. The SA Bill of Rights is over 4600 words long and contains 33 major headings. Among these are many noble and proper declarations somewhat like our own, but there are others — namely, the ones that I presume Justice Ginsberg admires. Three in particular declare the following (with my emphasis added) as the supreme law of the land in South Africa:

24. Environment — Everyone has the right:

(a) to an environment that is not harmful to their health or well-being; and

(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that

(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

…..

26. Housing:

(1) Everyone has the right to have access to adequate housing.

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.

(3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

27. Health care, food, water and social security:

(1) Everyone has the right to have access to:

(a) health care services, including reproductive health care;
(b) sufficient food and water; and
(c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.

(3) No one may be refused emergency medical treatment.

Isn’t this nice? What’s not to like? It sounds like an Occupy-Wall-Streeter’s paradise. It sounds like the promises made whenever socialism has been sold to a hopeful and unsuspecting populace. It reads as does the European Union Constitution, where attempts to deliver on promises like these threaten to collapse whole economies and lead to massive civil unrest.

Note that nowhere in the SA Constitution does it say that SA “rights” are to be conferred by any means other than those of “The State”. At virtually every turn, The State is the implied guarantor, provider, and benefactor.

However …

Note also the remarkable Item (2) in italics under Headings 26 and 27 above. The phrase “within its available resources” is a convenient way for The State to renege on the associated promised right. I interpret that clause in italics to mean: If we cannot squeeze enough money from selfish South African ‘makers’ to cover our promises to South African ‘takers‘, then this ‘human right’ may not be fulfilled after all. The State has few resources of its own, you see. So if these promises don’t come true, please remember to blame the selfish ‘makers’, not The State.

Note also the use of the interesting phrase “progressive realization”. What do they mean by “progressive”? It could mean gradual, which gives the state a way to put off demands for all these guaranteed freebies. Or it could mean Progressive in the political sense, which implies heavy taxation on those wealthy makers and little or no taxation on the takers. Either or both can help prolong The State’s hold on power.

So I’m left wondering whether Justice Ginsberg admires those SA Constitution human rights promises or those weasel-worded escape phrases. Perhaps it’s both(?).

Of course our own Bill of Rights is fundamentally different. Ours is about what the Federal Government cannot do to us rather than what it must do for us. To a Leftist like President Obama, we know that sounds like a defect — he’s told us so. But Conservatives know that the American approach has led to the most prosperous populace, at all economic levels, in the history of the world. And similar approaches have worked well in other places (albeit to varying degrees) such as Hong Kong, South Korea, Singapore, and Chile.

On the other hand, where the Left has had free reign and made the grandest of promises, like those in the South African Constitution, the results have been horrific beyond belief. Just listen to people who have lived through it in the 20th century (here, here, and here).

Scanning through the South African Constitution I found several other areas that may have attracted Justice Ginsberg’s admiring eye. To limit the length of this article, I’ll include just one more … namely, an amazing provision in “Chapter 1, Founding Provisions” that reads:

6. Languages

(1) The official languages of the Republic are Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu.

(2) Recognising the historically diminished use and status of the indigenous languages of our people, the state must take practical and positive measures to elevate the status and advance the use of these languages.

(3) (a) The national government and provincial governments may use any particular official languages for the purposes of government, taking into account usage, practicality, expense, regional circumstances and the balance of the needs and preferences of the population as a whole or in the province concerned; but the national government and each provincial government must use at least two official languages.
(b) Municipalities must take into account the language usage and preferences of their residents.

(4) The national government and provincial governments, by legislative and other measures, must regulate and monitor their use of official languages. Without detracting from the provisions of subsection (2), all official languages must enjoy parity of esteem and must be treated equitably.

(5) A Pan South African Language Board established by national legislation must
(a) promote, and create conditions for, the development and use of (i) all official languages; (ii) the Khoi, Nama and San languages; and (iii) sign language ; and
(b) promote and ensure respect for (i) all languages commonly used by communities in South Africa, including German, Greek, Gujarati, Hindi, Portuguese, Tamil, Telegu and Urdu; and (ii) Arabic, Hebrew, Sanskrit and other languages used for religious purposes in South Africa.

In short, South Africa has 11 “official” languages and a Language Board that “promotes” 15 more. To a poor, benighted soul like me, this sounds like a politically correct polyglot run amok, but perhaps this too won Justice Ginsberg’s approval?

Well …

The Left, including Barack Obama, still loves to portray its socialist leanings as some sort of new, forward-looking, if-only-we’d-try-it philosophy of government that will finally bring us all social justice and fairness. But given its cataclysmic failures and atrocities in the 20th century, I’d say that Leftism and Socialism are both long past their sell-by date.

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The road to serfdom begins with the belief you can overcome natural differences to create a tie at the finish line of life.
Herbert London

Some state lawmakers committed to striking down the federal takeover of health care – the Patient Protection and Affordable Care Act (“PPACA”) – have moved forward with establishing PPACA insurance exchanges at the same time the United States Supreme Court will be deciding the law’s fate.

Why? The answer we have heard over and over again is that they are establishing PPACA exchanges in their states in order to preserve state control and flexibility over the exchange. However, this answer is refuted by a review of the law.

The President’s health care law says it all: “An Exchange may not establish rules that conflict with or prevent the application of regulations promulgated by the Secretary under this subtitle.” The very language of PPACA makes clear that any so-called state control or flexibility the states think they have is at the mercy of the federal government.

It’s sort of like a retractable leash. You can walk your dog on such a leash and give them some slack to run around, but ultimately, you can pull your dog in at any moment.

Likewise, with PPACA exchanges, as long as the president and his officials are holding the exchange leash, Arizona and other states establishing state exchanges will leave their sovereignty and the liberty of their citizens at the mercy of the federal government.

It makes no sense for a state that is part of the multi-state lawsuit challenging PPACA that is currently before the Supreme Court to both oppose the statute and enforce it at the same time. But beyond being contradictory, PPACA exchanges are detrimental to the fight against the law enabling them. Over the last several weeks court briefs supporting PPACA specifically cite the fact that states are moving forward with exchanges as evidence that exchanges can survive with or without the law’s mandate that all Americans buy insurance.

With oral arguments scheduled in the Supreme Court in late March and a decision expected in June, it is not too late for states like Arizona to reverse course, as Wisconsin did last month, by sending back the federal exchange grant money they have received and stop exchange implementation activities.

Diane Cohen is a senior attorney for the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.

Learn more:

Goldwater Institute: States must protect the health care freedom of their citizens by saying no to federal health insurance exchanges

Goldwater Institute: States damaging their own case with insurance exchange moves

In December, the Goldwater Institute filed a constitutional challenge to the City of Phoenix’s practice of “release time” within the police union. This practice takes six city police officers off the streets and puts them behind desks to work as full-time union managers, 35 to work as part-time union representatives, and one to work full time as a union lobbyist — all while collecting city salaries and benefits.

As surprising as it may be, the practice is widespread among local-government unions around the country. A win in court will lead to the elimination or severe curtailment of the practice across Arizona. Unions would be forced to pay for the practice through their own union dues or, at the very least, compensate taxpayers for their use of public employees.

But the legislature has a chance to go one step further to guarantee the practice is banned in its entirety. Arizona Senate Bill 1486 would prohibit municipalities from signing contracts that fund union release time in any manner. The bill, sponsored by Arizona Senator Rick Murphy, was introduced yesterday to the Arizona Senate. It requires city governments to respect the Arizona Constitution and rescues taxpayers from unknowingly funding union activity.

No doubt unions will object, likely predicting all sorts of negative consequences for government workers. But teachers’ unions were barred from using full-time release positions in 2010 with no disasters to speak of, and city employees in Scottsdale seem to function just fine without any type of union release time.

The lawsuit and legislation come at a good time. In Phoenix and other cities, unions have issued new demands to be considered in upcoming negotiations— demands that include even more release-time hours and even more public employees transferred from government jobs to union work.

Release time is a unsavory, unconstitutional give away to unions that must be stopped, whether it happens in the courts or with legislative action and a signature from the Governor.

Taylor Earl is an attorney for the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.

Learn More:

Goldwater Institute: Money for Nothing: Phoenix Taxpayers Foot the Bill for Union Work

Goldwater Institute: Do Police Officers Pay for Release Time?

Arizona State Legislature: SB1486

Distributed by C O M M O N  S E N S E , in Arizona

Wednesday, January 18, 2012

Anthony Martin Conservative Examiner

In a stunning development that could potentially send the nation into a Constitutional crisis, an astute attorney who is well-versed in Constitutional law states that the ruling against the state of Arizona by Judge Susan Bolton concerning its new immigration law is illegal. The attorney in question submitted her assertion in a special article in the Canada Free Press. Her argument states in part, “Does anyone read the U.S. Constitution these days? American lawyers don’t read it. Federal Judge Susan R. Bolton apparently has never read it. Same goes for our illustrious Attorney General Eric Holder. But this lawyer has read it and she is going to show you something in Our Constitution which is as plain as the nose on your face. “Article III, Sec. 2, clause 2 says: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction.” In other words, the Judge in the Arizona case has absolutely no Constitutional jurisdiction over the matter upon which she ruled. As the Constitution makes abundantly clear, only the U.S. Supreme Court can issue rulings that involve a state. This means that neither Judge Bolton nor the 9th Circuit Court of Appeals in San Francisco, to which the case is being appealed, have any legal standing whatsoever to rule on the issue. Thus, U.S. Attorney-General Eric Holder filed the federal government’s lawsuit against the state of Arizona in a court that has no authority to hear the case. The attorney whose heads-up thinking concerning the Constitution provides the legal remedy for dealing with this blatant disregard for Constitutional law in the article at Canada Free Press, which can be accessed at the link above. In a related development, another explosive discovery was made by those who actually take the Constitution seriously. The Constitution specifically allows an individual state to wage war against a neighboring country in the event of an invasion, should there be a dangerous delay or inaction on the part of the federal government. This information was cited by United Patriots of America. From Article I, Section 10 of the U.S. Constitution, we find these words: “No State shall, without the Consent of Congress, engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” No one who is actually familiar with the crisis at the southern border can deny that Arizona is endangered by the relentless assault of lawless Mexican invaders who ignore our laws, inundate our schools and medical facilities with unpaid bills, and even endanger the very lives of citizens with criminal drug cartels that engage in kidnapping, murder, human trafficking, and other mayhem, including aiming missile and grenade launchers directly at U.S. border cities from just across the Mexican border. This is every bit as much of an invasion as the nation of Iran sending in a fleet of warships to the Port of Charleston. The Constitution that forms the basis of the rule of law in this country says that Arizona has legal right to protect itself in the case of inaction or delay on the part of the federal government, including waging war in its self-defense. This, when coupled with the clear Constitutional mandate that only the Supreme Court hear cases involving the states, should be ample legal basis for attorneys representing Arizona to go after the federal government with a vengeance. Governor Jan Brewer and the stalwart members of the Arizona legislature have ample legal reason to stand firm against the illegal bullying of an arrogant, lawless federal government.

Right when we should be CUTTING spending (not just the rate of increase, but ACTUAL spending) and lowering taxes, certain elements of the RNC and “think tanks” are angling not just to keep existing spending and taxes going but ADD an entirely NEW federal tax for us to pay.

What the heck is going on, aren’t we in the midst of a teaparty?

FOR IMMEDIATE RELEASE: January 5, 2011
CONTACT: Richard Cullen

WASHINGTON (DC) Congressman Ben Quayle released the following statement Wednesday regarding President Obama’s “recess” appointment of Richard Cordray as director of the new Consumer Financial Protection Bureau (CFPB):

“Today, in an all-too-familiar display of arrogance, President Obama appointed yet another unaccountable czar to head the new CFPB. This appointment circumvents Congress’s constitutional duty to approve appointments to high-level positions. While the President may make temporary recess appointments, the House and Senate are not in recess. Therefore, this move is outside the President’s constitutional authority and rejects decades of precedent that prevents the President from making recess appointments unless the Senate has been out of session for three days or more.

“Disregarding Congress’s constitutional role is always unacceptable but especially when the agency in question is brand new, incredibly powerful and the product of terrible legislation. Protecting consumers is important, but due to the many flaws of Dodd-Frank, the new CFPB is unaccountable to Congress despite the fact that it will have unique authority over individual consumers. If there ever was an appointment that deserved scrutiny by Congress—and therefore the American people—it is this one. President Obama swore to preserve the Constitution not trample on it when it gets in his way.”

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FOR IMMEDIATE RELEASE: December 27, 2011

Statement of Superintendent of Public Instruction John Huppenthal on Administrative Law Judge’s Decision that the Tucson Unified School District’s Mexican American Studies Program is in Violation of A.R.S. § 15-112 

Phoenix, AZ, December 27, 2011– Today, Superintendent of Public Instruction John Huppenthal released the following statement on the decision of Administrative Law Judge Lewis Kowal that affirmed the Tucson Unified School District’s (TUSD’s) Mexican American Studies Program was in violation of A.R.S. § 15-112 as per his ruling from June 15, 2011:

“I was very pleased to receive Judge Kowal’s decision today affirming the ruling that I made on June 15 that TUSD’s Mexican American Studies Program was in violation of A.R.S. § 15-112.

In my role as State Superintendent of Public Instruction I have a legal responsibility to uphold the law and a professional imperative to ensure that every student has access to an excellent education.

Upon taking office on January 3, 2011, I was faced with the immediate circumstance of the Tucson Unified School District being found in violation of A.R.S. §15-112 by the outgoing Superintendent. Instead of making a snap decision on the matter, the Arizona Department of Education, at my direction, conducted an intensive investigation, spanning many months, of TUSD’s Mexican American Studies Department (MASD) and its program.

In the end, I made a decision based on the totality of the information and facts gathered during my investigation – a decision that I felt was best for all students in the Tucson Unified School District. The Judge’s decision confirms that it was the right decision.

I will be issuing my final ruling regarding the matter in the near future after a thorough and deliberate review of the Judge’s decision.”

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This spring, a group of California Democrats gathered at a modern, airy office building just a few blocks from the U.S. Capitol. The meeting was House members only — no aides allowed — and the mission was seemingly impossible.

In previous years, the party had used its perennial control of California’s state Legislature to draw district maps that protected Democratic incumbents. But in 2010, California voters put redistricting in the hands of a citizens’ commission where decisions would be guided by public testimony and open debate.

The question facing House Democrats as they met to contemplate the state’s new realities was delicate: How could they influence an avowedly nonpartisan process? Alexis Marks, a House aide who invited members to the meeting, warned the representatives that secrecy was paramount. “Never say anything AT ALL about redistricting — no speculation, no predictions, NOTHING,” Marks wrote in an email. “Anything can come back to haunt you.”

In the weeks that followed, party leaders came up with a plan. Working with the Democratic Congressional Campaign Committee — a national arm of the party that provides money and support to Democratic candidates — members were told to begin “strategizing about potential future district lines,” according to another email.

The citizens’ commission had pledged to create districts based on testimony from the communities themselves, not from parties or statewide political players. To get around that, Democrats surreptitiously enlisted local voters, elected officials, labor unions and community groups to testify in support of configurations that coincided with the party’s interests.

When they appeared before the commission, those groups identified themselves as ordinary Californians and did not disclose their ties to the party. One woman who purported to represent the Asian community of the San Gabriel Valley was actually a lobbyist who grew up in rural Idaho, and lives in Sacramento.

In one instance, party operatives invented a local group to advocate for the Democrats’ map.

California’s Democratic representatives got much of what they wanted from the 2010 redistricting cycle, especially in the northern part of the state. “Every member of the Northern California Democratic Caucus has a ticket back to DC,” said one enthusiastic memo written as the process was winding down. “This is a huge accomplishment that should be celebrated by advocates throughout the region.”

(Read the entire article)

The somber anniversary of Border Patrol Agent Brian Terry’s death, murdered in the line of duty in Arizona, the weapon used to murder him was provided to the criminals through the illegal cross-border networks by the Obama Administration’s Department of Justice through their  heinous FAST and FURIOUS scheme.

Brian Terry: SEMPER FI:  http://www.youtube.com/watch?v=q0jTJq_VfS8

In September, my colleague Mark Flatten released an investigative report showing that Phoenix and other Arizona cities spend millions of dollars every year to pay employees to perform union work on city time. Less than three months later, we are going to court on behalf of Phoenix taxpayers to put an end to the practice of union “release time.”

Our case takes on the city’s contract with the Phoenix Law Enforcement Association (PLEA), which provides an estimated $900,000 in annual release time for police union work, including lobbying. The provisions take six full-time officers off the streets – giving them full pay, benefits, and overtime for union work – in addition to providing thousands of additional release-time hours for the union to dole out at its discretion. Altogether, more than 40 police officers can be released from some or all of their law-enforcement duties by the union.

Only a few years ago, Phoenix voters agreed to raise their sales tax to hire more police officers and firefighters. Would they have done so knowing that much of the revenue would wind up as a union giveaway? Moreover, PLEA itself confesses that release-time means less money for police officer salaries.

Beyond endangering public safety, the release time is an unconstitutional subsidy. The Arizona Constitution prohibits gifts to individuals or private entities by subsidy or otherwise. In 1984, the Court upheld a school district’s release-time provision because the cost was minimal and the duties imposed were significant. Here the cost is massive and the benefits are negligible.

With cities and their taxpayers struggling in a tough economy, release time is an obvious place to save money. Union members should pay the costs of union activities — if they desire them. Passing those costs along to taxpayers is an illegal charade that should quickly end.

Clint Bolick is director of the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.

Learn More:

Goldwater Institute: Cheatham v. Gordon

Goldwater Institute: Money for Nothing: Phoenix taxpayers foot the bill for union work

Goldwater Institute: Turken v. Gordon (CityNorth subsidy case)

Arizona Supreme Court: Wistuber v. Paradise Valley School Dist.

FOR IMMEDIATE RELEASE: December 5, 2011

PHOENIX (Monday, December 5, 2011) — Arizona Attorney General Tom Horne will argue Tucson v. Arizona before the Arizona Supreme Court at 2:00 p.m. Tuesday, December 6, at the Thunderbird School of Global Management in Glendale. You can watch live at http://azcourts.gov/AZSupremeCourt/LiveArchivedVideo.aspx (see instructions below)

The case centers on a 2009 state law, A.R.S. 9-821.01, a law requiring cities to have non-partisan elections and prohibit some at-large elections.

The prohibited system, now used in Tucson (but this statute would also prevent other cities from adopting that system) tends to disenfranchise voters in districts where the majority is different than the overall majority in that city. In a number of districts, the voters have been represented by someone who lost in their district.

Earlier, the state Court of Appeals ruled in favor of Tucson’s argument that this was purely a local matter and the Legislature had no right to pass laws on the subject. The Arizona Supreme Court granted review, and Horne will argue that the State does have a legitimate interest and that the statute is valid.

Note: When you access the page, scroll down and you will see under “Upcoming Events” the Tucson v. Arizonacase. Next to the case you will see “case summary.” Once the argument goes live at 2:00p.m. “oral argument” will appear next to “case summary.” Select the “oral argument” text and the feed will appear.

WHO: AG TOM HORNE TO ARGUE TUCSON V. ARIZONA CASE
WHERE: THUNDERBIRD SCHOOL OF GLOBAL MANAGEMENT
1 GLOBAL PLACE
GLENDALE, AZ 85306
DATE: TUESDAY, DECEMBER 6, 2011
TIME: 2:00 P.M.

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FOR IMMEDIATE RELEASE: December 5, 2011
CONTACT: Chad Heywood

Constitutional Conservative Committee formed for Kirk Adams 

East Valley – Kirk Adams for Congress today released Co-Chairman for his “Constitutional Conservative Committee.”

Well known Constitutional Conservative activists Bill Norton and Jared Taylor, have officially agreed to lead Kirk Adams Constitutional Conservative Committee. This committee will help organize patriotic events and will help give policy advice to the campaign.

Bill Norton and Jared Taylor are well known Constitutional advocates and teachers. They teach and promote Constitutional values and history in Arizona and across the country. They have also been integral components in putting on the largest Constitutional celebration in the country, known as Constitution Week USA, which attracts over 10,000 people each year.

Co-Chairman Bill Norton said about the committee, “I am happy to support Kirk Adams for Congress. Kirk is committed to protecting the Constitution and keeping the federal government limited within its proper role. We welcome those who share our values and who want to become a part of Kirk’s Constitutional conscience once elected. This committee will also take an active part in the campaign.”

Co-Chairman Jared Taylor said, “I have known Kirk for over 20 years. He loves the Constitution and works hard for our community. We are lucky to have Kirk represent East Valley families in Washington. I look forward to working with like-minded conservatives who want to join this committee and help Kirk succeed.”

Businessman Paul Marchant, a member of the committee had this to say, “I am glad to live in an area where we have great people and great candidates. Selecting a candidate who loves the Constitution and who values limited government is very achievable in the east valley. I have chosen to be a part of Kirk’s campaign because I know he sees that our generations number one priority is to reign in the federal government. He will work each day with only one interest in mind, saving the Republic for his kids and mine.”

Adams is a husband, father, and small businessman. After joining the state House in 2006, he became so frustrated by the unwillingness and inability of Republicans in the Legislature to stand up for their conservative principles that he launched a long-shot campaign to oust the veteran Speaker of the House. Adams shocked the Republican establishment and political class, winning the Speakership at only 35 years of age.

Adams turned the tide in the House and put Arizona back on the path to fiscal responsibility with an aggressive agenda of reform, courageously taking on some of the most challenging issues in Arizona. Adams, a lifelong East Valley resident, lives in Mesa with his wife JaNae their five children.

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On November 14, the U.S. Supreme Court granted review of the 26-state lawsuit against the President’s healthcare law, the Patient Protection and Affordable Care Act. The Court granted 5 ½ hours for oral argument, including two hours of argument on the individual mandate and 1 ½ hours on severability, which addresses whether, in the event the mandate is found unconstitutional, the entire Act must be stricken as well.

The severability issue is a critical consideration for states like Arizona, which are suing over the law’s constitutionality while at the same time moving forward with implementing other parts of the law, specifically the law’s health insurance exchanges. This undermines the idea that if the mandate is found unconstitutional the whole law must be thrown out.

The federal district court that first heard the lawsuit brought by the states found the mandate unconstitutional and not severable from the remainder of the statute, and thus struck down the entire Act as unconstitutional. The judge explained that to sever the mandate from the remainder of the Act would require “reconfiguring an exceedingly lengthy and comprehensive legislative scheme,” including “going through a 2,700 page Act line-by-line, invalidating dozens (or hundreds) of some sections while retaining dozens (or hundreds) of others.”

The 11th Circuit Court of Appeals affirmed the federal court’s decision on the mandate, but disagreed on severability. The Circuit court held that the “stand-alone nature of hundreds of the Act’s provisions” and their “lack of connection to the Mandate” cut against non-severability. The Supreme Court will now decide the issue.

For its part, the Obama Administration has maintained that the mandate is closely linked to the guaranteed issue and community ratings provisions, and that they must also go if the mandate is found unconstitutional. The Goldwater Institute argued in its lawsuit challenging the Act that the establishment of health insurance exchanges and increases in Medicaid eligibility are also linked to the Act’s overall reform scheme and that the entire Act must be stricken.

Now that the Supreme Court has agreed to hear the severability issue, states like Arizona must return federal exchange money they have received and cease from establishing health insurance exchanges. Efforts to stop the federal takeover of healthcare must not be placed in jeopardy by the states voluntarily complying with a law that they are at the same time challenging as unconstitutional.

Diane Cohen is a senior attorney for the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.

Learn More:

Goldwater Institute: Ten Resons Why Arizona Must Reject Health Insurance Exchanges

Arizona Republic: A welcome mat for ‘Obamacare’ in Ariz.

U.S. Supreme Court: Granting of Cert

A thick volcanic plume is flowing over the 2010 healthcare law. Rumbles are heard from the U.S. Supreme Court which, in 2012, will issue a fourfold constitutional judgment. To one centrist scholar, the law’s constitutional frailty suggests chambers of operational dysfunction beneath the surface. An NFIB study estimates how that dysfunction will waft over small business and the rest of the economy. And a Treasury Inspector General’s report indicates that the law’s overhyped tax credit provides little shelter. As the law sags beneath the ash, NFIB suggests twelve ways that Congress could begin to replace the law with real reform that improves healthcare and cuts costs.

The constitutional challenge: The U.S. Supreme Court announced on November 14 that in 2012, it will decide the fate of the Patient Protection and Affordable Care Act (PPACA). From the many cases wending their way through the federal courts, the Supreme Court selected NFIB v Sebelius as the centerpiece of its deliberations. In March, the Court will hear arguments on four questions: (1) Is the unprecedented individual mandate constitutional? (2) If the Court strikes down the individual mandate, must it also strike down the entire law? (3) Does the Anti-Injunction Act require courts to wait until 2014 to consider constitutional challenges, since no penalties will be paid on the mandate until then? (4) Does PPACA’s massive increase in Medicaid unlawfully coerce the states into participating? A ruling is likely to come in June.

In 2010, the National Federation of Independent Business (NFIB) joined with 26 of the 50 states to challenge the healthcare law’s constitutionality. A Florida federal court ruled that the individual mandate was unconstitutional and ordered the entire law struck down, since it lacked a severability clause. The Eleventh Court of Appeals agreed that the mandate was unconstitutional but allowed the rest of the law to stand. NFIB appealed the second part of that ruling, arguing that without a severability clause, the entire law must fall. More information on NFIB’s lawsuit is available at www.nfib.com/lawsuit.

Operational dysfunction: In a penetrating column, Walter Russell Mead (Bard College) explored the deeper significance of the lawsuit: “Writing a bill that passes constitutional muster should be easy in a Congress so rich in lawyers and legislation writers.  Writing a bill that successfully improves American healthcare delivery while controlling costs, on the other hand, is hard.  Very, very hard.  If they did so poorly at the easy part of their task, the part where we can actually measure and monitor their success, what kind of mess have they made of the hard and murky parts that nobody, including the authors of the bill, really understands?”

Job losses: NFIB has supported healthcare reform for decades but strongly opposed PPACA because it failed to do what Professor Mead suggested was important: improving healthcare delivery while controlling costs. As an example, the NFIB Research Foundation has just released a job-loss study enumerating the damage that PPACA’s higher costs will do to small business. “Effects of the PPACA Health Insurance Premium Tax on Small Businesses and Their Employees,” by Michael J. Chow, estimates the job losses that will result from just one provision of the law – PPACA’s health insurance premium tax. Chow estimates that this tax “will reduce private sector employment by 125,000 to 249,000 jobs in 2021, with 59 percent of those losses falling on small business.” This tax falls heavily on small business while bypassing big business, labor unions, and governments; and it is only one of a constellation of cost-increasers that small business faces in PPACA. NFIB is spearheading a repeal coalition aimed at dropping this tax; toward this end, H.R. 1370 and S. 1880 have been introduced in the House of Representatives and Senate.

Credit oversold: At the same time, the most heavily-touted cost-decreasing measure in the law turns out to be a dud. PPACA supporters have argued that over 4 million businesses would benefit from a tax credit of up to 35% of the businesses’ health insurance costs (50% beginning in 2014). NFIB consistently said that the credit is fine for those who can make use of it, but that relatively few businesses would get much out of it. The preliminary figures are in now, and they are worse than NFIB’s pessimistic estimates were. The Treasury Inspector General for Tax Administration reported that as of mid-October, only 309,000 businesses had claimed the credit for 2010 and that the average credit per business was around $1,346 – not much of inducement to offer insurance.

Twelve doable reforms: Whichever way the Supreme Court rules, the country will need real healthcare reform that improves healthcare delivery and moderates costs. Toward this end, NFIB has posted a set of twelve NFIB Healthcare Solutions that could begin the task of replacing PPACA. The proposals include (1) Tax parity between the group and individual markets; (2) Tax parity between insurance purchased by the self-employed and groups insurance; (3) Defined contribution health insurance; (4) More transparent measures of cost, options, and quality; (5) Public and/or private exchanges; (6) Interstate insurance purchasing. (7) More risk-pooling options for small businesses and individuals; (8) Mechanisms to get insurance for those with pre-existing conditions; (9) Greater insurance portability; (10) Greater latitude for consumer-driven health insurance products; (11) Wellness incentives; and (12) Malpractice reform. These reforms are just a start and did not touch on two big areas where reform is needed: healthcare delivery systems and entitlements.

Conclusion

Those who wrote this law ought to go to bed each night fearing two things. Their lesser fear should be that the Supreme Court overturns PPACA, leaving their vision of healthcare reform as dead as Pompeii. Their greater fear should be that the Supreme Court doesn’t overturn the law, for then they will spend the next generation explaining the destruction they brought upon American healthcare and the American economy.

Almost two years ago, in Citizens United v. Federal Elections Commission, the Supreme Court ruled that the First Amendment prohibited the government from forcing any corporation, union or other association to channel their money through a political action committee in order to make independent expenditures. Arizona responded by thumbing its nose at the decision.

Under the guise of requiring disclosure of independent expenditures, the state enacted a law that effectively forces any corporation, union or limited liability company that exists “primarily” to influence elections to channel its independent expenditures through a political committee. Now, in the name of transparency, the Arizona Secretary of State is engaged in a headlong effort to enforce compliance with this unconstitutional regulatory regime.

Independent groups are right to resist. Applied to independent expenditures, Arizona’s political committee regulations are essentially the same as those struck down in Citizens United. Both threaten civil or criminal penalties merely for raising and spending money to talk about politics.

To avoid such sanctions, both sets of regulations require forming and registering an elaborate political organization, complete with segregated accounts, appointed officers and responsibility for regular financial reporting, as well as exposure to audits by governmental agencies. This forces groups who want to engage in political speech to develop an expertise in volumes of campaign finance laws, related regulations, and agency interpretations of regulations.

As a result, both sets of regulations minimally impact well-funded, politically-connected groups, but heavily impact the least sophisticated, the least connected, and the most underfunded.

Neither the federal government nor Arizona have the constitutional authority to require such high regulatory hurdles for independent groups engaging in free speech. The First Amendment does not allow “transparency” to become a banner under which the government silences independent voices.

American citizens have a constitutional right to spend money expressing their support or opposition for candidates. That right is not forfeited when they organize a corporation, union or limited liability company to serve as the means of pooling their resources.

Nick Dranias holds the Clarence J. and Katherine P. Duncan Chair for Constitutional Government and is director of the Joseph and Dorothy Donnelly Moller Center for Constitutional Government at the Goldwater Institute.

Learn More:

Goldwater Institute: Citizens United v. Federal Election Commission: A Case for Limiting Campaign Finance Regulations

A.R.S. § 16-902 (2011): Arizona Political Committee Regulations

A.R.S. § 16-901 (2011): Arizona Statutory Definitions

A.R.S. § 16-919 (2011): Criminal Sanctions for Contributions other than to Independent Expenditure Committee