The Illustrated Guide to Criminal Law
(Via Jim Bennett)
Law
Blasphemy Prosecutions in America?
A Justice Department official, testifying before Congress, repeatedly refused to promise that the Obama DOJ will never seek to criminalize speech against any religion. Report and video here. Via Pam Geller, who has plenty to say about this.
For decades now, some of American leading universities have been normalizing the idea that interference with free speech is OK, indeed is a positive good. This has been done on two levels: first, directly, via administrative restrictions and required indoctrination, second, indirectly, by allowing students and others to get away with interfering with the free speech of others, for example by theft of opposing newspapers and by outright violent intimidation. With this precedent, it was inevitable that attacks on free speech in the wider political sphere would come to be viewed as more acceptable.
I don’t think it is at all far-fetched that a second Obama Administration, coupled with a Dem-controlled Congress, would attempt to push through what would be in effect a thinly-disguised blasphemy law, using a variant of the “crying fire in a crowded theater” argument. Whether they would get away with it or not would depend on the mix of Supreme Court Justices on the Court at that time.
The Roberts Opinion: What Now, Politically?
Most of the commentary I am seeing on Chief Justice Roberts’ Obamacare decision falls into two categories: (1) why the opinion is doctrinally and substantively wrong, and (2) the various awful things which will or might happen as a result of it.
Point 1 may be correct. Mark Levin had a vehement and convincing analysis asserting that the opinion is legally defective. Point 2 may also be correct, the consequences of the opinion may be awful, sooner or later.
But neither of these points much matter. Both are backward-looking. Both, in effect, say, if only Roberts had done something different than he did.
It is a waste of time to worry about that. A Supreme Court opinion is pretty nearly immutable. John Roberts will likely be Chief Justice for decades to come. Bring down the curtain on that act in the drama. It is over.
The only question that matters right now is this: What political dangers and opportunities does this opinion create? How can we make use of this opinion? How can we minimize the political damage from this opinion? (I notice Mr. Obama got an uptick on Intrade as a result of it.)
A military commander has to take the terrain and weather as they are given. The set parameters within which he must operate. He cannot waste time bemoaning the mud, or the rain, or the height of the cliffs or the aridity of the desert.
A major Supreme Court opinion is similarly a “given.” It is like a sudden shift in the terrain. It is as if an earthquake had changed the course of a river. You now simply have to work with that new feature of the landscape, and whether it should have happened or whether it is a bad thing overall are both irrelevant.
My initial assessment is that the opinion provides a substantial amount of ammunition to people running against Mr. Obama, other Democrats, and Obamacare itself. I would like to see the many people smarter than myself focusing on this angle. We only have a few months. There is not a lot of time for theorizing. We should be thinking in strictly utilitarian terms: How can we use this ruling to win elections in November?
Leave everything else for the “long term,” for now.
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.
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.