Now that virtually everyone including Newt Gingrich believes that Mitt Romney will be the GOP nominee it is time to pivot toward the general election and cast an eye on how Romney matches up with Barack Obama.

While many conservatives are quite glum about our prospects, in recent weeks I have become more hopeful as it appears the macro factors are increasingly in Romney’s favor. Political contests are a mysterious mixture of design, luck, and perception. I think the latter two factors are starting to favor Romney. It remains to be seen whether his team is up to the task of out working and out thinking the Obama campaign.

The economy continues to splutter and some economists are even starting to talk about recession again. Foreign policy is as much a mess as ever but its hard to see how Obama gets much credit beyond the killing of Bin Laden and exiting Iraq. Afghanistan is a disaster that is directly attributable to Obama. He ran in 2008 on the platform that Afghanistan was the “good war” that he would reemphasize as the Iraq War wound down. That hasn’t worked out very well and the American public is increasingly war weary after eleven years of body bags and little to show for it.

The perception of Obama has changed over the last year or so. More people are speaking up about his short-comings and at times he has come dangerously close to becoming an object of ridicule.  Events such as the “flexible” gaffe show him to be at best a typical double-talking politician and at worst a dangerous poseur.

Mitt Romney can win this by hammering at Obama’s failings and keeping the campaign focused clearly on the economy, repealing Obamacare, and returning our foreign policy to a more familiar “American” approach. Obama’s competence should be hammered incessantly. I suspect that while centrist American’s have growing doubts about Obama’s ability they also don’t want to see him vilified as a socialist or “the other” etc.

To the extent Romney gets caught up in junk like contraception or trying to explain “self-deportation”  he will lose. To the extent he keeps the conversation focused on Obama’s lack of answers that don’t involve a few trillion more in debt, he will win.

I’m beginning to suspect that the unfolding GSA scandal may be a REALLY BIG story that causes Barack Obama no end of problems. Major political scandals often start quietly and build drip by revelatory drip until too late the people at the epicenter realize the “Oh crap” alarm should have sounded weeks ago.

But today’s diary is inspired not by the latest revolting information contained in the video below, but by Wolf Blitzer’s peculiar statement at the 3:08 mark.

What Blitzer said was:

Its pretty shocking that four years into the Obama Administration stuff like this is going on…

What precisely did Blitzer mean by that fascinating statement? Why is it particularly “shocking” that “this stuff” is going on “four years into the Obama Administration” ?

The revelations are shocking yes (well disgusting is a better word, I wasn’t “shocked” by the story any more then I would be “shocked” if the national debt tops $20 trillion in the next year or two) but why the reference to “four years into the Obama Administration”? Hmmm?

I could better understand the phraseology if he were discussing unemployment, or the deficit, or the quagmire in Afghanistan, or the anemic economy, or the state of race relations in the country. After all those were all areas that Barack Obama assured us he would fix, or at least improve, lickety-split if we’d just elect him President.  He even threw in a bonus promise that his election would be  “the moment when the rise of the oceans began to slow and our planet began to heal”.

Media bias is a churlish imp. No matter how straight-faced they deny it, little tell-tale signs always betray them.

The only reason I can think of for Blitzer’s choice of words is that he actually bought that “hope and change” baloney. Wolf Blitzer has been a reporter/anchor for 40 years but he drank the Obama kool-aid like a gullible boob and is now gobsmacked that his idol is incompetent.

Now THAT is shocking.

Unless you’re an attorney who specializes in immigration issues its likely that you didn’t recognize the Supreme Court case I used for a title.

In brief Panagis Vartelas was born in Greece, came to the U.S. in 1979 on a student visa, became a permanent resident in 1989, started a business in 1992, was convicted of a non-violent offense in 1994 and served four months.

In 1996 the U. S. Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) which among other things,  changed the status of a permanent resident who had been convicted of certain offenses upon reentering the country. Such a person was now considered to be “seeking admission” even though they were a lawful permanent resident who, if they had stayed in the U.S., would not have been subject to deportation for the same offense.

Between his conviction in 1994 and the subsequent adoption of the IIRIRA in 1996 and 2003, Mr. Vartelas went back to Greece to visit his parents on several occasions without incident. In 2003 he was stopped while trying to  re-enter the country on the basis of his 1994 conviction and the provisions of IIRIRA. He lost the hearings before the Immigration Judge and the Board of Immigration Appeals (BIA) and was ordered removed to Greece.

In 2008 he brought a new action to the BIA, lost, appealed to the Second Circuit and lost again. In January of this year the case was argued before the Supreme Court. It was decided on March 28 and featured a 6-3 vote with Ginsberg writing the opinion and Scalia writing the dissent joined by Thomas and Alito.

The case fascinates me because it is an example of how ultimately some cases are decided by how the justices’ brains are wired.  I found the arguments of each side persuasive but would likely have sided with the majority had they asked my opinion.

In short the case revolved around retroactivity and WHICH action triggered the retroactivity clock. Because Congress had not made the IIRIRA retroactive, any offense committed before the adoption of the law could not be used in enforcing that law. The majority held that the point to test for retroactivity was the 1994 conviction (before the IIRIRA was adopted) while the dissent found that point should have been the return to the U.S. after the trip to Greece in 2003 (after the IIRIRA was adopted). On that basis Mr. Vartelas won his appeal and is today a salesman for a roofing company in New York.

To my layman’s eye this case was decided based on interpreting the law rather than on some squishy “let’s make the law conform to what we think it should be” basis. Yet Roberts and Kennedy (Kennedy being a moderate and Roberts being the next most moderate of the conservative wing) came to different conclusions than did the three most conservative justices, and joined with the four liberals. So what does it all mean? Is there something about being “liberal” or “conservative” that makes us key on different things when faced with questions that touch on social justice?

To sum his dissent Scalia brilliantly wrote

“This case raises a plain-vanilla question of statutory interpretation, not broader questions about frustrated expectations or fairness. Our approach to answering that question should be similarly straightforward: We should determine what relevant activity the statute regulates (here, reentry); absent a clear statement otherwise, only such relevant activity which occurs after the statute’s effective date should be covered (here, post-1996 re­entries). If, as so construed, the statute is unfair or irra­tional enough to violate the Constitution, that is another matter entirely, and one not presented here. Our inter­pretive presumption against retroactivity, however, is just that—a tool to ascertain what the statute means, not a license to rewrite the statute in a way the Court considers more desirable.”

As to process I agree with Justice Scalia, however I can’t agree with his conclusion that the 2003 re-entry was what caused the removal to Greece of Mr. Vartelas.

None of the forgoing should be taken as my position on what immigration law should be. The law is what it is and in this case at least I guess I’m a moderate.

Four years ago Peggy Noonan was one of a group of erstwhile Republicans who succumbed in varying degrees to the Cult of Obama.  Noonan, who’s claim to fame rests entirely on having written some very good speeches for President Reagan, also saw fit to join in the general trashing of Sarah Palin in her newly assumed position of “thinking conservative”.

Now after three years of the Master of Disaster, Noonan has made a startling discovery about her former crush. In today’s Wall Street Journal she breathlessly proclaims that

“What is happening is that the president is coming across more and more as a trimmer, as an operator who’s not operating in good faith. “

Imagine that! You just can’t fool brilliant thinkers like Peggy Noonan. Repeatedly hit in the face with a flounder she finally has begun to detect a faint whiff of something fishy. Why after a mere 38 months she can infer that Barack Obama is a phony and a bully. She goes on to use words such as “sour” “creepy” and “shocking” to describe her one time beau ideal.

She further takes His Oneness to task for “following an imaginary bunny that disappeared down a rabbit hole” (shades of Jimmy Carter? ) and suggests that as a former president he would write “write a memoir laced with a certain high-toned bitterness” .

Goodness gracious! Barack Obama has lost Peggy Noonan, can David Brooks be far behind?

The impressive sounding Commerce Clause has been used for roughly 80 years to steal our liberty and allow the exponential growth of federal power. That any judge ever assented to the bludgeoning and torture of a simple sentence in The Constitution is regrettable, but that conservative lawyers have aided that process through timidity is a travesty.

To begin let’s take a look at the infamous Commerce Clause. Its location in The Constitution is Article 1, Section 8, Clause 3. It is simply drawn and easy to understand.

The Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

That is the Commerce Clause (CC) in its entirety. There are mildly qualifying clauses that touch on the CC in Section 9 but they serve to LIMIT congressional power not expand it.

Did you notice what the CC does not say. It does not say that Congress can regulate commerce. “What”? you shout, “Are you crazy”? “The Commerce Clause does not give Congress the power to regulate commerce”?  And my answer is , no, not explicitly.  Read the clause again :

The Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Can you see it now? That simple clause certainly does not give Congress power over all commerce! How do I know? Because if the Founders had wanted to give Congress sweeping power over all commerce they would have just written  “Congress has the power to regulate all commerce”? But they didn’t use those words. Instead they identified three types of commerce that Congress “shall have the power to regulate”.

1. Commerce with foreign Nations

2. [Commerce] among the several States

3. [Commerce] with the Indian Tribes

Its so simple and plainly written. Commerce between individuals was NEVER intended to be covered by the Commerce Clause.  The non-mysterious goal of each sub-clause of the Commerce Clause was:

1. Ensure that the Federal Government could regulate commerce with other countries. This is an obvious need that is tied directly to national security.

2. Ensure that the nation would form a single market as opposed to the various states setting up trade barriers amongst themselves. This again is tied to national stability and security.

3. When this Constitution was written  “Indian Tribes” were still quite potent, often were aligned with foreign powers, and thus represented a significant threat to national stability and security.

So it can be understood that what the founders were concerned with here was not the ability to regulate what we as a free people buy and sell, but rather the power to set national policy in areas that involve other governmental entities whether foreign, state, or tribal.

If you won’t take my word for it then let us turn to the words of James Madison writing in Federalist #42. I know it is a bit long but I beg of you a few minutes time to hear Mr. Madison speak to us across the ages:

The powers included in the Third class are those which provide for the harmony and proper intercourse among the States.

Under this head might be included the particular restraints imposed on the authority of the States, and certain powers of the judicial department; but the former are reserved for a distinct class, and the latter will be particularly examined when we arrive at the structure and organization of the government. I shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit: to regulate commerce among the several States and the Indian tribes; to coin money, regulate the value thereof, and of foreign coin; to provide for the punishment of counterfeiting the current coin and securities of the United States; to fix the standard of weights and measures; to establish a uniform rule of naturalization, and uniform laws of bankruptcy, to prescribe the manner in which the public acts, records, and judicial proceedings of each State shall be proved, and the effect they shall have in other States; and to establish post offices and post roads.

The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquility. To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain.

The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. In Germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission.

The regulation of commerce with the Indian tribes is very properly unfettered from two limitations in the articles of Confederation, which render the provision obscure and contradictory. The power is there restrained to Indians, not members of any of the States, and is not to violate or infringe the legislative right of any State within its own limits. What description of Indians are to be deemed members of a State, is not yet settled, and has been a question of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a State, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible. This is not the only case in which the articles of Confederation have inconsiderately endeavored to accomplish impossibilities; to reconcile a partial sovereignty in the Union, with complete sovereignty in the States; to subvert a mathematical axiom, by taking away a part, and letting the whole remain.

It is astonishingly clear that regulating commerce between individuals was not the intent behind the Commerce Clause.  Read again Madison’s remarks regarding “Indian Tribes”:

The power is there restrained to Indians, not members of any of the States, and is not to violate or infringe the legislative right of any State within its own limits. What description of Indians are to be deemed members of a State, is not yet settled, and has been a question of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a State, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible.

It is obvious from Madison’s remarks that any controversy or confusion among the “federal councils” was not along the lines of modern day argument regarding the Commerce Clause.

Consider also these lines:

The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls.

Notice that Madison is addressing the trade between States, not trade or commerce between individuals.  His concern is with one state taking advantage of another via tariffs, tolls, etc.

Madison’s choice of words is also telling here:

I shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit: to regulate commerce among the several States and the Indian tribes;

Notice that amid all the controversy of the Constitution that the Federalist papers were meant to help calm, Madison views the Commerce Clause as calling for only a “cursory review”. A clause that did cause quite a lot of uproar at the time was the so called “Necessary and Proper Clause”. It was realized that this clause contained the seed of unlimited federal power, yet if not the “Necessary and Proper Clause” then what? For many years both clauses were largely applied with restraint and wisdom. When a one sided interpretation of the Necessary and Proper Clause was misapplied to a dishonest reading of the Commerce Clause, the slippery slope became an all too evident danger to our liberty.

I can come to only one conclusion after reviewing the foregoing and looking back at all that has been done by the Federal Government over the past 80 years:  We the people have been badly snookered. We have been and continue to be sold out by our elected representatives, our judiciary, and the vast majority of the members of the bar. Complicit in this has been our media and both major political parties. And yes we too, We The People, bear a heavy responsibility for not being better informed and quicker to object when our freedoms have been lessened or removed.

The Founders gave us a Republic based on individual responsibility and individual liberty. Over the last eight decades we have allowed it to be taken away piece by precious piece.

I have been arguing over in this thread that I believe there is both a strong basis and considerable reason to hope for an overturning of Obamacare.  In coverage of today’s session the Washington Post provides quotes from four center-right justices that point in that direction. Clarence Thomas  rarely speaks during public sessions but he is viewed as the most likely justice to vote to overturn.

Justice Anthony M. Kennedy suggested that the 2010 Patient Protection and Affordable Care Act invoked a power “beyond what our cases” have indicated the Congress possesses to regulate interstate commerce. “Can you create commerce in order to regulate it?” he asked.

“So if I’m in any market at all, my failure to purchase subjects me to regulation?” Justice Antonin Scalia wanted to know. When Justice Ruth Bader Ginsburg observed that “the people who don’t participate in this market are making it much more expensive for those that do,” Scalia [responded],“You could say that about buying a car. If people don’t buy a car, the price [that car buyers] will pay will be more.”

Chief Justice John G. Roberts Jr. wondered if the government could require everyone to buy cellphones, since that would facilitate the government’s system for providing fire and ambulance services in emergencies.

Justice Samuel A. Alito Jr. brought up burial services. Aren’t people who don’t have burial insurance making a decision about how they are going to pay for their inevitable funeral, he asked.

Those are telling quotes. They don’t strike me as either misdirection or pro forma comments.  Scalia and Kennedy in particular seem to be very unimpressed by the government’s arguments.

As we trudge through life the wise among us always strive to make the best decision at each point where one is required. Whether it is deciding to not throw rocks through Old Man Smith’s window, or deciding not to punch someone in the mouth, or deciding to go to the university that gives us the best chance to succeed regardless of how unsexy the institution may be, or deciding not to have an affair with the hot blonde in marketing, all of us make decisions everyday that impact our life and our loved ones lives in countless ways.

Sometimes the decisions are easy and even fun. Sometimes they are unpleasant or heart wrenching. But in the end a rational person  must look at the options and choose the best one even if none of them are appealing.  The 2012 Republican nomination now appears to be safely in Mitt Romney’s hands. I have been predicting for at least a year that this couldn’t happen. That the Republican party would surely have a better choice than a one term moderate governor of the most liberal of states. I was wrong wrong wrong.

Mitt Romney will be the Republican nominee. Its done, cooked, tied up, finished. Now the only choice left is between Mitt Romney and Barack Obama. Suddenly the way before me is easy. As unthrilled as I am by Romney, he positively glows when compared to the most audaciously radical President of the United States in history.  As concerned as I am by his squishy brand of conservatism, I know without reservation that Mitt Romney will make more good choices and fewer awful choices than Barack Obama.

So beginning today I will suspend negative comments about Mr. Romney. Its the logical thing to do because anything I say or do to hurt Mr. Romney helps Barack Obama and that is unacceptable.

*edited for grammar 3-22-12 10:54 pm

A standard feature of political discourse between putative allies is when each side claims the other is an illegitimate proponent of the faith. This is currently on display for viewing in the competing threads for and against Rick Santorum’s proposed manufacturing tax policy.

Unlike Quill and Becker I have not given enough thought to the specific proposal to take a comprehensive position, however I do have a few thoughts on one aspect of the argumentation that I see in the original posts and the voluminous comments that follow each.

An interesting feature of this debate is the positing by some that the proposed tax policy would be tantamount to “social engineering”. While technically accurate,  I would suggest that a definition that broad would logically also mean that virtually ALL governmental action could reasonably be considered “social engineering”.  In fact Wikipedia saved me some typing by helpfully summing it up very well:

For various reasons, the term has been imbued with negative connotations. However, virtually all law and governance has the effect of seeking to change behavior and could be considered “social engineering” to some extent. Prohibitions on murder, rape, suicide and littering are all policies aimed at discouraging undesirable behaviors.

So while I agree that in a very narrow sense a zero tax on manufacturing would be social engineering, I also understand that in this context the specter of “social engineering” is being used as a scare tactic to twist the debate and discredit Rick Santorum’s proposal.

Becker advances the highly questionable claim that taxes are not causal to changes in economic activity:

“With respect to Santorum’s zero tax for manufacturing as a way to revitalize the nations employment base, he’s simply wrong.  He has no clue what motivates the private sector because he hasn’t been in it forever.  All he’s doing is tinkering with the tax code in a slightly different way than Obama does.  And, it won’t make a difference.  Federal taxes, by and large, don’t impact manufacturing in a way that will accomplish an expansion of the manufacturing base and create jobs. “

I find it astonishing that anyone who calls them self a conservative would argue against a tax cut on the grounds that taxes don’t impact business decisions.  I certainly understand Becker’s concerns as regards cutting one tax and then raising another, but as far as I know that is not part of Santorum’s plan but is simply Becker’s opinion of what may happen.

If this proposal represented the first exception ever carved into the tax code I again would share Becker’s concern. That of course is not the case as our tax laws are an incredibly complex hodge podge that gives with the right hand while taking with the left hand.  If the manufacturing sector can be revitalized with one more tweak to the tax code I for one won’t quibble.

Back in December I endorsed Newt Gingrich. I sent his campaign a relatively generous donation and have stayed with him through thick and thin over the past three months. With the failure yesterday to win Alabama and/or Mississippi, the Gingrich campaign has stalled and, while nothing is certain in this weird primary season,  likely will now either quickly crash or slowly flutter downward like a mortally wounded duck.

A couple of months ago I wrote:

I don’t believe Mitt Romney can win. He has never really been the front-runner. He’s just been the [candidate] the party establishment supported so in a fractured field he seemed more important than he really ever was.  His record is wrong, he has no core that anyone has ever seen, and he is a stiff and plastic candidate who utterly lacks the ability to connect with average people.

I stand by that statement. The difference is in the person who seems best positioned to defeat Romney. Then it was Gingrich, now it is Santorum. Rick has performed well beyond what anyone expected. While he is not without faults, he brings a youthful energy to the campaign at a time when the GOP needs just that. While he can correctly be called a  “big government conservative” he still compares quite favorably to Mitt Romney in that regard. He is staunchly pro-life and pro-family at a time when the current administration is at war with both concepts.

Rick Santorum has withstood the barrage of garbage thrown at him by the Romney Campaign and gotten stronger. As the “conservative” share of the vote has remained steady at over 50% just about everywhere other than Taxachusetts, now would seem to be the time for Rick Santorum to go head to head with Mitt Romney.

I like and respect Mr. Gingrich but I no longer think his presence in the race is helpful. If we are to defeat Barack Obama let us do it with a candidate that is unabashedly Pro-Life and has shown some ability to connect with the average American.

Speaker Gingrich please step aside and endorse Rick Santorum for the Republican nomination for President.

Our world has gone mad. Up is down and right is wrong.  Civilization is on a steep declining slope toward a recreated Babylon. In these perilous times we have effectively lost our right to free speech.

Sure we can still curse each other, or say the president, or senator, or governor is a loser, or loudly pound the table with our shoe and denounce Obama-care. But free speech no longer exists in any meaningful way for conservatives. If we say what we think on an ever growing list of issues, we risk vilification in the media, are threatened with losing our jobs, or if we own a business threatened with boycotts or picket lines, even our homes are no longer safe from the maddened mob.

Kirk Cameron makes some calm comments about his personal beliefs and he is gang tackled by the usual suspects and accused of fomenting murder.  Someone as powerful as Rush Limbaugh says something rude but tame by comparison with Bill Maher, and yet Limbaugh is pilloried in the mass media while Maher is celebrated.

Right-thinking people have sat back for over a half century and allowed the left to define and enslave our culture. From Earl Warren’s Supreme Court that destroyed a century and a half of jurisprudence, to Norman Lear’s TV empire that derided bedrock American values, to the prostitution of once great news organizations to the cause of liberalism, to the putrification of our entertainment industry, to the election of a radical fool as president, conservatives have failed to heed the signs and answer the call to defend our nation from destructive mischief from within.

I doubt it can be turned around. I fear the time for that is past.

Ronald Reagan loved to quote Abe Lincoln’s lines about America being mankind’s  “last best hope”. If they were right (and in an Earthly sense I think they were) , then “mankind” is hanging by a thin thread indeed. In his seminal 1964 speech A Time For Choosing, Reagan closed with these words:

“We will preserve for our children this, the last best hope of man on earth, or we will sentence them to take the first step into a thousand years of darkness. If we fail, at least let our children and our children’s children say of us we justified our brief moment here. We did all that could be done. “

Have we done all that we can do? Have we justified our brief moment?