Sunday, July 1, 2012

Quick Hits - June 29, 2012

Three big issues continue to dominate the news cycles - Fast and Furious, the SCOTUS Obamacare decision, and the Eurocrisis.  We'll take a look at all three in today's edition...

In a move that caught no one by surprise, the Department of Justice has officially announced that they will not proceed with the prosecution of Attorney General Eric Holder after the House of Representatives voted to hold him in criminal and civil contempt of Congress yesterday...
The contempt vote technically opened the door for the House to call on the U.S. attorney for the District of Columbia to bring the case before a grand jury. But because U.S. Attorney Ronald Machen works for Holder and because President Obama has already asserted executive privilege over the documents in question, some expected Holder's Justice Department to balk.

Deputy Attorney General James Cole confirmed in a letter to House Speaker John Boehner that the department in fact would not pursue prosecution. The attorney general's withholding of documents pertaining to Operation Fast and Furious, he wrote, "does not constitute a crime."

"Therefore the department will not bring the congressional contempt citation before a grand jury or take any other action to prosecute the attorney general," Cole wrote.

Senator Chuck Grassley, the Iowa Republican, and leading the Senate side investigation into Fast and Furious, has a major problem with the letter from Deputy Attorney General James Cole...
“The Deputy Attorney General’s letter has put the cart before the horse,” Grassley wrote today. Grassley also said that without a particularized description of the documents being withheld or a description of the documents over which executive privilege has been asserted, the U.S. Attorney cannot reasonably make an intelligent judgment as to the validity of any privilege claim and his duty to present the citation to a grand jury.

“Your independence and integrity were cited as the reason that there was supposedly no necessity to appoint a special prosecutor. This matter [the congressional contempt citation] gives you an opportunity to live up to that high praise and prove your independence.”

"The way this has been handled so far suggests no such independence at all. Before you have even received the citation, before you have even had a chance to understand the scope of the documents and the privilege claim at issue, the Deputy Attorney General has already announced the decision of “the Department” not to proceed as required by the contempt statute.

None of this really was unexpected as it is becoming clearer to observers that the DoJ is in full cover-up mode. They believe that with the near lock-step support from most Democrats in Congress, in particular the members of the Congressional Black Caucus, and the lack of a 'smoking gun', they can escape accountability for their actions. The problem for them is similar to the problem that exposed and ultimately undone the Watergate cover-up - inside information.

On Thursday, Representative Darrell Issa quietly entered into the Congressional Record restricted / classified information about wiretap applications related to Fast and Furious that allegedly point to senior DoJ officials knowing about and supporting 'gunwalking' operations - info provided by whistleblowers within the ATF...
According to the letter, the wiretap applications contained a startling amount of detail about the operation, which would have tipped off anyone who read them closely about what tactics were being used.

Holder and Cummings have both maintained that the wiretap applications did not contain such details and that the applications were reviewed narrowly for probable cause, not for whether any investigatory tactics contained followed Justice Department policy.

The wiretap applications were signed by senior DOJ officials in the department’s criminal division, including Deputy Assistant Attorney General Jason Weinstein, Deputy Assistant Attorney General Kenneth Blanco and another official who is now deceased.

In Fast and Furious, agents for the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed assault guns bought by “straw purchasers” to “walk,” which meant ending surveillance on weapons suspected to be en route to Mexican drug cartels.

Can someone explain to me about how you track guns, and gain info - if you know who the straw buyers are, about the middlemen and cartel, if one makes no effort to track the buyer and weapons once they leave the gun shop and aren't seen again until they are abandoned at a crime scene? At best, one learns that XYZ cartel used the weapons. Then what? That's the fundamental problem with Fast and Furious - the 'official' explanation for it's purpose makes no sense whatsoever.

The SCOTUS decision, led by Chief Justice John Roberts, continues to generate controversy and analysis.  There is considerable speculation around hints within the opinions of the ruling that the Chief Justice switched his vote in the 11th hour - moving from ruling the Individual Mandate unconstitutional to upholding the mandate as a tax under Congress's power to impose taxes.  Much of this speculation is focused around concerns (projected?) of the Chief Justice towards the legacy of 'his' Court -being one that delivered a number of 5-4 decision including one that could have gutted the major legislative achievement of President Obama and the 2008 election of a progressive Congressional majority.

Pundits are also focusing on the Chief Justice's comments about being an umpire - and not wanting to appear to overreach the Judicial Branch beyond that of the Legislative Branch - noting that the SCOTUS has almost no accountability to the American people while the Legislative Branch is fully accountable to the American people.  But even with that - I strongly believe that history is not going to be kind to this decision - and even less so if it comes out that Roberts changed his vote in any manner in response to the pressure being placed on 'his' Court from the progressive left.

Here's one view that contends conservatives are trying to fool themselves if they think this decision is anything but a major defeat for efforts to reduce the expansion of the powers of the federal government....
What did Roberts get? Institutional respect for the Court from people who have no respect for the Courts unless they win? That’s not a prize one can count on to last long. If you think liberals we say, “we’ll let it slide next time we lose a 5-4 decision and promise to never again push the boundaries of the Commerce Clause because Roberts gave us ObamaCare” you’ve missed the last 80 or 90 years of liberalism and the courts. Maybe I missed something but the New Deal and Warren courts* were happy to overturn decades and decades of law and never felt the need to “throw a bone” to conservatives (or people who thought the words of the Constitution had some set meanings).

In fact, Roberts has actually lost something very important (if this theory is right)…he’s shown that with enough bullying and threats against the legitimacy of his Court, he’ll give in.

The Wall Street Journal's editorial on the decision matches my viewpoint towards this decision - which has at it's core the fact that the Chief Justice rewrote the Obamacare legislation from the bench in order to save it - and leave it up to the 2012 American voter to decide if it should stand or be repealed.
In their brutal (and, in a rarity, jointly signed) dissent, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito write that the Chief Justice's logic "is not to interpret the statute but to rewrite it. . . . One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression." They score the Chief Justice for carrying "verbal wizardry too far, deep into the forbidden land of the sophists."

Justice Kennedy dissented angrily from the bench, and it is to his credit that he defended the federalist system of shared powers that is the hallmark of his years on the Court. The particular tragedy is that four Justices would have overturned not merely the purchase mandate but all of ObamaCare as unconstitutional. Only John Roberts prevented it.

One telling note is that the dissent refers repeatedly to "Justice Ginsburg's dissent" and "the dissent" on the mandate, but of course they should be referring to Ruth Bader Ginsburg's concurrence. This wording and other sources suggest that there was originally a 5-4 majority striking down at least part of ObamaCare, but then the Chief Justice changed his mind.

The Justices may never confirm this informed speculation. But if it is true, this is far more damaging to the Court's institutional integrity that the Chief Justice is known to revere than any ruling against ObamaCare. The political class and legal left conducted an extraordinary campaign to define such a decision as partisan and illegitimate. If the Chief Justice capitulated to this pressure, it shows the Court can be intimidated and swayed from its constitutional duties. If this was a play to compete with John Marshall's legacy, the result is closer to William Brennan's.
Powerline has another superb analysis of the ruling - and the long term impact of the reasoning of Chief Justice Roberts...
Chief Justice Roberts found the individual mandate in Obamacare constitutional because he concluded that the mandate could be considered a tax, and that Congress has the power to tax the decision not to purchase health insurance. As we have discussed, Roberts didn’t find that the mandate is most accurately viewed as a tax. Rather, he found that it is “fairly possible” to view it that way.

The “fairly possible” test is a well-established method through which courts can avoid overturning the will of the people’s branches of government. If there is a fairly possible interpretation of statutory language that will save it from being held unconstitutional, courts will accept that interpretation. Again, they do so in the name of upholding the people’s will, as reflected in the decisions of those they elect, if fairly possible.

But in the Obamacare case there’s a nuance. The legislature and the executive represented to the public that the mandate is not a tax. Ordinarily, the use of labels is not particularly relevant, and perhaps labels should not carry much weight here.

However, when the labels affixed, and the framing used, by the people’s branches clearly are designed to make legislation palatable to the people, it can be argued that deference to democracy does not militate in favor of stretching to reject the labels and the framing through the “fairly possible” test. Here, the president and his fellow Democrats labeled and framed the exaction for not purchasing health insurance as a penalty because taxes are unpopular. Does it promote the will of the people to bend over backwards to countenance this deceptive approach to legislating?

Hugh Hewitt brings a historical comparison to the SCOTUS decision ...
One way to think about this: The decision is a modern Marbury v. Madison, where the executive who thought he had won had actually lost. The Chief Justice, already on the fence because of the plausible argument about the taxing power and worried about the Court's reputation and legitimacy as well as the prospect of two or three more appointees from President Obama, decides to go for the historic win and, by putting the taxing power on steroids, upholds the law but also changes the campaign tone which will not only result in the election of Mitt Romney and security in the next round of Supreme Court nominations and confirmations, but also lays the foundation for a long range cabining of the Commerce Clause and an eventual strike down of other portions of Obamacare, including the HHS regs. If this scenario plays out, this will put Roberts in Marshall's rank, but that depends on the electorate and, if elected, Mitt Romney's appointees to SCOTUS.

While the White House is estatic with the ruling by the SCOTUS, they are far less thrilled with the fact that the SCOTUS has defined the Individual Mandate as tax.  While briefing reporters on board Air Force 1 while heading to the Colorado wildfires, Press flack Jay Carney repeated denied that the mandate is a tax - calling it a penalty.  With the President on record of promising multiple times that he will not raise taxes on those with less than $250,000 of annual income, the 21+ taxes within Obamacare, including the mandate, could make this a pyrrhic victory - a 'Read my lips' broken promise that will haunt the President at the ballot box.

The Investor's Business Daily notes in their editorial today on the ruling....
Forcing citizens to buy health insurance "is absolutely not a tax increase," Obama insisted in 2009. Earlier, he assured the public that raising taxes on the middle class to support his health care plan was "the last thing we need in an economy like this." "Folks are already having a tough enough time," Obama added.

Indeed they are. But his plan, which subsidizes some 30 million uninsured, amounts to a $1.8 trillion whammy on working families. And that's just for starters.

The court was silent about the 20 other different taxes hidden in ObamaCare, more than half of which affect families earning less than $250,000 a year.

The new taxes, which cost some $675 billion over the next decade, include:

• A 2.3% excise tax on U.S. sales of medical devices that's already devastating the medical supply industry and its workforce. The levy is a $20 billion blow to an industry that employs roughly 400,000.
Read it all for the full list of taxes that Obamacare imposes in its effort to 'pay for' the massive reach of the federal government to control 1/6th of the national economy...

This creates a powerful point of attack for the GOP to drive voters to support not only Mitt Romney, but efforts to maintain their majority in the House and gain the 4 Senate seats needed to seize a majority there.  Since the ruling, and through early this morning, the Romney campaign raised over $4.2 million in campaign contributions.

Democrat Ed Rendell sees this, and is very concerned - calling Obamacare 'an albatross around our neck'...

“Now I think the president can and will continue to point out the good things that are in this act because we’re not going to run away from it. They [Republicans] are going to make it a campaign issue. I have always said we make a mistake, we Democrats, when we don’t stand and defend. It’s going to be an albatross around our neck. Let’s stand and defend it,” Rendell said on Friday’s edition of MSNBC’s “NOW.”

Can they stand and defend it - particularly since now that it is passed, we're seeing what is in it - including the largest middle class tax hike in the history of the United States?

As the Weekly Standard's Bill Kristol wrote several weeks ago...
Put not your trust in judges—nor in other berobed or bejeweled personages. To the degree you trust anyone: Trust the people.


Conservatives shouldn’t count on the Supreme Court to do our work for us on Obamacare. The Court may rule as it should, and strike down the mandate. But it may not. And even if it does, the future of health care in America—and for that matter, the future of limited government—depends ultimately on the verdict of the American people.

More concretely: While a defeat for Obamacare in the Court would be nice, the defeat of President Obama at the polls on November 6 is crucial. If electoral victory is achieved, Obamacare can and will be repealed—and more judges of a constitutionalist persuasion will be appointed by the next president. Indeed, one could almost say that a bad Court decision later this month would be a salutary reminder that here the people rule, and that persuading the people is the key task. As Lincoln put it in his first debate with Stephen Douglas, “In this and like communities, public sentiment is everything. With public sentiment, nothing can fail; without it, nothing can succeed. Consequently he who molds public sentiment goes deeper than he who enacts statutes or pronounces decisions.”

Is Missouri Democrat and friend of Barack Obama, Claire McCaskill, highlighting the depths of trouble the President and the Democrats are in this election season? There is a local Missouri report that Senator McCaskill is hiding from reporters and refusing to make any statement regarding Obamacare and the SCOTUS decision...

Ace, from Ace of Spades, has some additional information that hints to McCaskill trying to distance herself from the President, citing a report from the NY Times in this post that McCaskill lobbied the White House to NOT hold the Democratic National Convention in St. Louis...
That's right -- she lobbied the organization to not spend millions in her state. Why? Because it would be bad for her, politically.

So Missouri? No millions of dollars of out-of-state money for you. It would be coin in your pocket, but Claire McCaskill would find it politically awkward, so. You lose.

This is why 2012 is far closer to 2010 than it will be 2008...

Not helping the President is more fecklessness from his Department of Energy - and the drive to throw taxpayer funds at solar companies to create jobs - like this $400 million loan guarantee touted by President Obama...

Just two years after President Obama touted a $400 million loan to the green energy firm Abound Solar, the company is declaring bankruptcy. The Department of Energy announced the news on Thursday, while the media were focused on the Obamacare Supreme Court decision, C.J. Ciaramella of the Washington Free Beacon reports. A Department of Energy spokesman wrote on the agency’s website that Abound Solar received "less than $70 million” of its $400 million loan from the government. According to the New York Times, Abound Solar only has 125 employees at this time--all of whom will be fired next week. Dividing the $70 million loan by its entire workforce amounts to $560,000 per worker.

The failure of Abound Solar, like that of Solyndra, is particularly embarrassing for President Obama--he touted the $400 million loan to Abound Solar in his July 3, 2010 weekly address and claimed it would create 1,500 "permanent jobs."

In Europe - it appears that Germany, faced by a unified leftist coalition of France, Spain, and Italy, has blinked - agreeing to let the Euro rescue fund directly aid troubled banks in the region without adding to the sovereign debt of those nations drawing on the funds. This step energized not only a strong rally for Spanish and Italian bonds, but for banks across southern Europe, and global stock markets.

The Telegraph, said this in their report - Germany has today caved into demands made by Italy and Spain for immediate eurozone aid to bring down their soaring borrowing costs, sending the euro and markets higher.

But as with all things from the Eurozone and about the Eurocrisis, the devil is in the details - the Wall Street Journal notes in their report...
But the unexpected statement of unity issued in the small hours of Friday morning gave way almost immediately to a wave of ifs and buts, as briefings by national leaders once again highlighted the residual divisions between them…
…But leaders' subsequent briefings were poles apart on some key aspects of the deal they had just reached.

In stark contrast to his German and Dutch counterparts, French President François Hollande said a key clause of the ESM had been changed to allow decisions to be made without unanimity.

Unlike the EFSF, Mr. Hollande said, the "ESM has an advantage, namely that it doesn't have unanimity." Once the EFSF had been replaced by the ESM, the need for full unanimity would be removed, he said.

The comment surprised EU officials, who said Mr. Hollande's view wasn't in line with the current ESM treaty, which will be ratified by France and other countries in the coming weeks.

"If Hollande said this, we might as well all go home and scrap the ESM, because this was not what was agreed in the ESM treaty," a diplomat from one euro-zone country said.

Zerohedge also notes the unanswered questions on the 'deal'....
The EU summit to save the Euro (the nineteenth, or thereabouts) has, quite remarkably, agreed to do something to try and save the Euro. As UBS' Paul Donavan notes "As ever with a Euro summit there are unanswered questions. Grandiose statements are what heads of government specialise in – the details are left to later" - it is one of the reasons why Maastricht produced a monetary union that was flawed from the outset. Once “create a single currency” had been agreed, politicians lost interest. The statement from the summit itself was woefully inadequate, but below UBS lays out what additional questions need to be answered. Always keep in mind though, "Going into this summit we had a monetary union in Europe that clearly did not work. Coming out of this summit we have a monetary union that still does not work."

What is it about people who just cannot admit and accept an idea / concept is fundamentally wrong - and instead go to extreme levels to try to salvage something that should not be salvaged?

Today in History

1972 – SCOTUS strikes down the death penalty in a 5-4 vote – ruling capital punishment qualifies as ‘cruel and unusual punishment’, primarily because states employed execution in "arbitrary and capricious ways," especially in regard to race. It was the first time that the nation's highest court had ruled against capital punishment.

1982 - Israel invaded Lebanon.

1995 – US space shuttle docks with Russian space station Mir

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