DeVine Law Gamecock's Stone Mountain of Georgia roost-view of what mattered most in law, politics and sports in 2012
Merry Christmas to all as we celebrate the coming into the world of our Savior, who is Christ the Lord; and review the year that was. From the standpoint of a constitutional conservative Republican and, for that matter, anyone wishing for an economic recovery worthy of the characterization, "recovery" it is a painful year to re-live. Hence our decision to issue our look back on a day commemorating when a Joy entered the world that even economic depression can't temper.
This rooster crows Anno Domini, post-Advent, post-Nativity, post-Calvary and, most especially, post-Resurrection; and so we find nothing "common" about this 2012-year old (more or less) era.
Law: The Chief Justice of the United States betrays the Constitution
We the People ordained and ratified a constitution as the centerpiece of a limited government alternative to the Divine Right of Kings and parliaments unaccountable to the distantly governed. Yet, despite continued lip service to the venerable document as the Supreme Law of the Land, self-government and the Rule of Law have taken several devastating hits this year.
After President Barack Obama defied a federal judge in A.D. 2010 who found his post-BP Oil Spill, deep-water Gulf drilling moratorium unlawful; we weren't caught totally off-guard this year when our Chief Executive usurped the power of Congress to make immigration and welfare -to-work law by executive fiat. Moreover, since Democrats in the U.S. Senate have failed to comply with budgetary law for all of President Obama's first term, we expected a continuation of that party's lawlessness.
We can't say the same for John Roberts, the Chief Justice of the United States Supreme Court, nominated by fellow Republican and then-President George W. Bush before the Age of Obama. The Unaffordable Obamacare socialization of health care Act was illegally jammed through the U.S. Senate on the third try two years ago, with its "individual mandate" underpinning expected to meet an unconstitutional fate by conservatives of the textual/Robert Bork (God rest his soul) originalists school of judicial interpretation.
Nothing in Roberts judicial career prepared us for his bending-over-backwards to protect the "court's legacy" by finding the fine to be a tax, the finding of which allows the federal government to do anything it damn well pleases:
Every reasonable construction
Lest we forget, Roberts was joined in the result affirming the individual mandate to purchase a private health insurance policies or else, by the four usual liberal, Democratic Party President-appointed, suspects, i.e. associate justices. Perpetually un-moored to anything written and ratified by super-majorities in both houses of Congress or the States, Breyer, Ginsburg, Kagan & Sotomayor affirmed their party's Act on a 100+ year Dream of socialized medicine "firmly" on Commerce Clause grounds that their chief found unreasonable, despite these precedential recitations:
Because “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California, 155 U. S. 648, 657 (1895), the question is whether it is “fairly possible” to inter-pret the mandate as imposing such a tax, Crowell v. Benson, 285 U. S. 22, 62. Pp. 31–32 (1932).
Yet, the Chief Justice had no qualms about joining the unreasonable coerced-Commerce Clause justification agreed to by four, with his own presumably "reasonable", yet singular, opinion on the power to tax inactivity that not one other associate justice would join?
The Constitution was supposed to save us from the exercise of arbitrary governmental power, yet Roberts sees his role as saving unconstitutional statutes from being called by their name, as he "reasonably" makes the terms "tax" and "penalty" "constitutional" synonyms.
Article I, Section 8 empowers Congress to "lay and collect Taxes...to provide for the general Welfare." Under the Anti-Injunction statute, taxpayers lack standing to contest the constitutionality of tax bills until they are actually levied. But, while it is important to ordinarily rule primarily on the actual operation and effect of legislation rather than mere nomenclature, prior case law has held that Congress can define the taking of money from individuals as either a tax or a penalty in a bill, with differing definitions in separate sections. But the court had always refused to treat such takings in the past as both.
Result-oriented legacy and reputation
Enter the heretofore considered conservative icon of narrow rulings and judicial restraint to re-write the actual Affordable Care Act as the "Roberts' Legacy Can't Afford to Care about Anything but the Court's Reputation with Liberals Act. Congress could have defined the penalty for not buying a Blue Cross Blue Shield health insurance plan as a penalty for the purpose of its own Anti-Injunction jurisdictional statute and as a penalty for the purpose of the substantive effect of the bill. It didn't, so Roberts, intent upon attaining a result he desired rather than following the law, did it for them.
And he thinks these illogical, rhetorical calisthenics enhance his legacy? How so? The Commerce Clause had never been interpreted to empower the regulation of inactivity and his lone taxing power opinion applies only to this case. Moreover, why would anyone expect John Roberts to eschew illogical, rhetorical Commerce Clause calisthenics in the future if the New York Times and Breyer, Ginsburg, Kagan & Sotomayor advise that the "court's reputation" depends on it?
Many ransom notes have been fashioned with words cut out of news The Gray Lady saw fit to print. Chief Justice Roberts has now turned our founding document that arose from the Miracle at Philadelphia into just another fish wrapper... and it stinks.
Conservatives do not wish for courts to enact their will into law after failing to convince electoral majorities with free speech and we always knew that the only real way to save these United States from Obama's fundamental transformations was via the super-majorities elected at the ballot box. In that regard, we want a Republican President and Senate to fill court vacancies. Little did we expect that we would wish to replace John Roberts.
Well, at least conservatives in the states of Washington and Oregon may legally smoke away their sorrows...
Politics: The Betrayal of Common Sense
We had searched U.S. presidential election history in vain for a We the People re-election affirmation of failed first terms, and, arguably found none save for U.S. Grant. So, given an underemployment rate at 1930s depression levels and GDP anemically creeping along at just above and below 1.9%; we were confident that a minimum of 270 electoral votes for the GOP nominee were there for the asking come Election Day.
How to appeal to an electorate ignorant of how the America of the founding created historic wealth for over 200 years, never consciously saw themselves connected to the risk-taking entrepreneurs, never were so connected, or have given up on a return to striving for their old American dreams after the massive job losses of the past five years?
Given narrow electoral margins in a few swing states, it might have been possible to trick/inspire enough non-voters, third-party voters, or even a small portion of those who voted to re-elect President Barack Obama, but I doubt it. Given the epic failure of Obama to revive the economy and Romney's mainstream conservative message; that Obama wasn't fired from his job by a landslide indicates a tipping of a majority of the electorate no longer receptive to common sense accountability, much less free enterprise economics.
Sports: The Betrayal of even a "mythical" College Football national championship
The ACC betrayed this USC Fighting Gamecock as the "North Carolina Conference" in our 1970s adolescence, but after years of wandering in the Metro and Independent status wilderness, we joined the SEC and promptly won some basketball games, and, eventually two NCAA baseball College World Series. But Southern pride depends upon how that oblong ball bounces, so we are happy to have the Old Ball Coach regularly beating Dawgs, Vols and Clemson Tigers.
We respect the Southeastern Conference so much that our main sports goal in life (since the Atlanta Braves won it all in 1995) is to win the SEC Championship Game in the Georgia Dome before we go to meet our maker. Why, you ask, isn't the BCS Championship our ultimate goal? Because SEC titles are won on the field, and not upon the whims of "Harris" and coach voters. We love the SEC, but we don't worship it; and so we were quite perplexed that last season's BCS Bowl was but a re-match between the winner and loser of the SEC. We will never know what OKST Cowboys could have done against the SEC Champion Tigers. But Mike, obviously the Crimson Tide was the "best". Well, after every game, whoever out scores the other was the best that day. Who is to say that on a given day in January, Slippery Rock might not defeat the SEC champion? Do regular seasons and championships game matter or not?
Coming before New Years Eve: Cockstradamus prognostications and New Years' resolutions for 2013.
“One man with courage makes a majority.” – Andrew Jackson
Editor - Hillbilly Politics
Co-Founder and Editor - Political Daily
Atlanta Law & Politics columnist – Examiner.com