Miami residential real estate prices are holding firm and even increasing despite the weak economy. The recovery appears to result in significant part from capital inflows from French, Venezuelans and other foreigners whose governments are ramping up their attacks on private wealth. With low interest rates, a weak dollar and relative safety from confiscation, residential property in the more cosmopolitan US cities is a financial haven for Europeans and Latin Americans.
Big Government
Another Comment
I’m no lawyer – but here’s Instapundit’s take: “The Supreme Court has refused to save us from ourselves. The solution now must be political.” I guess it’s time we didn’t expect those dead white guys to do all the lifting – they must have been getting tired. Still, it was comforting to think they had our backs. And I’d like precedent to limit – well, strong.
Voltaire’s Prayer
“I have never made but one prayer to God; a very short one: ‘Oh Lord, make my enemies ridiculous.’ And God answered it.”
The Improper Individual Mandate
Liberals who are pessimistic about the prospects in the Supreme Court this week for the Affordable (or is it Abominable?) Care Act, known as “ACA,” have been preparing the ground by publicizing surveys measuring the unpopularity of the Court. Liberals who are optimistic, such as former speaker Nancy Pelosi, predict that ACA will be upheld 6-3.
The 6-3 breakdown comes from the result in Gonzales v. Raich, 545 U.S. 1 (2005), in which the Supreme Court held that prohibiting the cultivation of marijuana for personal medicinal use was within Congress’s powers under the Interstate Commerce Clause. To the dismay of many conservatives, Justice Antonin Scalia concurred with the majority. His concurring opinion shows how to apply the Commerce Clause to something as far from interstate commerce as ACA’s individual mandate.
And the individual mandate is very far from interstate commerce. An individual is not engaging in interstate commerce merely by refraining from buying health insurance. He is not engaging in commerce. He is not engaging in anything. That puts the individual mandate beyond Congress’s commerce power but not necessarily beyond Congress’s powers.
The Supreme Court has said that Congress has the power to regulate the channels and instrumentalities of interstate commerce as well as activities that substantially affect interstate commerce. Justice Scalia said in his concurring opinion in Raich that the power to regulate activities that substantially affect interstate commerce does not come from the Commerce Clause alone but from the Commerce Clause plus the Necessary and Proper Clause. The Necessary and Proper Clause has extended the Commerce Clause pretty far. Scalia wrote that “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.”
As disturbingly vast as that power might be, the Supreme Court would have to extend it even further to reach non-economic local inactivity. That extension may or may not be “necessary” to make ACA effective, but is it “proper”? At oral argument Justice Scalia posed that question to Solicitor General Donald Verrilli:
Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adapted was not proper, because it violated the sovereignty of the states, which was implicit in the constitutional structure. The argument here is that this also is — may be necessary, but it’s not proper, because it violates an equally evident principle in the Constitution, which is that the federal government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What — what is left? If the government can do this, what — what else can it not do?
The solicitor general (who didn’t do such a bad job overall) replied that the individual mandate does not invade the sphere of state government but, despite several follow-up questions, did not answer the question of whether the individual mandate improperly invades the sphere of individuals. Justice Kennedy pressed further, saying that “to tell the individual citizen that it must act . . . changes the relationship of the federal government to the individual in a very fundamental way.” General Verilli replied that the individual mandate is predicated on the individual’s unavoidable participation in the health care market.
That appeared to be enough for Justice Breyer, who in the course of rambling questions in search of a defense of the act, asked whether one enters the health care market simply by being born. Four justices seemed to find such a limitless premise for federal regulatory power troubling. They, along with Justice Thomas, may also find it improper.
Should that happen, leftists, with their newfound conviction that judicial review is anti-majoritarian, will switch into their outraged and indignant mode. How dare the Court strike down an act because it isn’t proper after Obama and the Congress decided that it was?
The answer will be that the Court is merely giving meaning to the outermost boundary of congressional power. What hangs in the balance this week is whether the powers of Congress are in theory limited but in practice infinite.
Obama now claims executive privilege
This morning, moments before a House vote on Contempt of Congress by Eric Holder, the Attorney General, the White House announced that President Obama is invoking executive privilege. Holder requested the action in a letter to Obama.
He said making the documents public “would have significant, damaging consequences,” but he did not disclose whether Obama has been briefed or had another supervisory role in Fast and Furious.
This raises the question of whether there are Obama fingerprints on the policy. Some documents have been released and some others, including incriminating e-mails, have been leaked to the committee. So far, Obama’s name has not been found in the documents. His action will now raise suspicion and will force news media, that have minimized the scandal, to inform incredulous readers that it is a big deal after all.
Richard Nixon could have ignored the burglary of the DNC offices in 1972. We now know that nothing was found that would have tarnished his reputation. It was the coverup that damaged him fatally. The election is coming in 5 months. The Watergate story did not really break until after the 1972 election. This seems to be breaking much sooner and its effect on Obama’s chances are hard to predict. The coming Supreme Court decision on Obamacare may overshadow this story.
Sen. Chuck Grassley, ranking member of the Senate Judiciary Committee, asked how Obama could assert executive privilege “if there is no White House involvement?”
A spokesman for House Speaker John Boehner said Obama’s move “implies that White House officials were either involved in the ‘Fast and Furious’ operation or the cover-up that followed.”
“The administration has always insisted that wasn’t the case. Were they lying, or are they now bending the law to hide the truth?” Brendan Buck said.
It doesn’t sound like it is going to subside anytime soon. It will be interesting to see if more leaks appear. The White House leaks like a sieve and not all are Obama fans, it seems.
Powerline writes that It won’t prevent Holder form being held in contempt.
Whether these consequences and concerns form the basis for a valid assertion of executive privilege is another matter. I’m no expert on the subject, nor do I know all of the ins-and-outs of the dispute between Holder and Issa’s Committee. However, when Congress has a sound basis for believing that the Executive branch lied to it over material matters as part of a coverup in the course of a legitimate congressional oversight investigation, regard for a proper balance in the relationship between Congress and the Executive argues strongly in favor of enabling Congress to obtain all documents relevant to the coverup, including those generated during the process through which the cover-up is reasonably believed to have occurred.
It will be interesting and may affect the election.
National Review Online has a piece that may explain the program.
an e-mail sent on July 14, 2010. After the operation, former ATF field operations assistant director Mark Chait e-mailed Bill Newell, then ATF’s Phoenix special agent in charge of Fast and Furious, to suggest a possible way to use Fast and Furious:
Bill — can you see if these guns were all purchased from the same (licensed gun dealer) and at one time. We are looking at anecdotal cases to support a demand letter on long gun multiple sales. Thanks.
This “demand letter” refers to the push for a policy that would require U.S. gun shops in southwestern states to report the sale of several rifles or shotguns to a single buyer. According to CBS, “Demand Letter 3 was so named because it would be the third ATF program demanding gun dealers report tracing information.”
This may have begun as an attempt to require licenses for long guns.