The Good, The Bad, The Grinch, and The (Monty Python) Spanish Inquisition

So much has come out of the D.C. Circuit the last couple of days. The “good” has a blistering, and quite appropriate, attack on the 111th Congress. The “bad” approaches the travesty of 2005’s Supreme Court Kelo decision. And then there is a bonus. It’s long, but I think would be well worth the read.

Back in 2007, the 110th Congress attempted to expand the Children’s Health Insurance Program by increasing the taxes on tobacco users. President George W. Bush vetoed it, one of few during his two terms, which Congress failed to override. Once Barack Obama became President, one of the first things the 111th Congress did was to revisit the expansion; it became one of the early bills Obama signed into law. In a nutshell, the federal government’s health insurance for so-called “poor” children was to be paid for by tobacco users, primarily cigarette smokers. Despite the fact that the federal government spends billions on smoking cessation programs, these idiots passed a law that needs people to keep smoking.

A few months later, the 111th Congress decided the FDA should regulate tobacco in the Family Smoking Prevention and Tobacco Control Act of 2009, which passed with bipartisan support in both the House of Representatives and the Senate. They authorized the FDA to enact a rule within 2 years to require new, large, textual warnings on cigarette packaging, and to require graphic images showing the effects of smoking. The final rule was issued on June 22, 2011, which the law stated was to take effect 15 months later; in other words, tobacco producers had to spend millions to retool all of their packaging machines to comply. Naturally, the tobacco companies filed suit, on 1st Amendment grounds, to block the rule from taking effect until the court could decide if it would pass muster according to the Constitution.

U.S. District Court Judge Richard Leon, who presides in the District Court for the D.C. Circuit and was appointed by President Bush (the latter), issued his ruling in the case R.J. Reynolds v. FDA. The ruling slaps an injunction on the new FDA rule saying the plaintiffs (the tobacco companies) would more than likely win their case on the merits. Judge Leon’s conclusion is quite clear:

Therefore, for all the foregoing reasons, this Court concludes that the plaintiffs have demonstrated: (1) a substantial likelihood of success on the merits; (2) that they will suffer irreparable harm absent injunctive relief; (3) that neither the Government, nor the public, will suffer any comparable injury as a result of the relief sought; and (4) that the public’s interest in the protection of its First Amendment rights against unconstitutionally compelled speech will be, in fact, furthered.

But that isn’t all. At the end of his discussion on the merits of the plaintiff’s 1st Amendment claim, Judge Leon issues a blistering criticism of Congress (reproduced in full; italicized emphasis from original, bold emphasis mine]:

Indeed, as plaintiffs noted during oral argument and again in their supplemental pleading, Congress did not specifically contemplate the First Amendment implications when formulating its statute, much less whether the statute or the FDA’s subsequent Rule might violate it. See, e.g., Tf. at 72:1-23; see also PIs.’ Supp. Memo. In Supp. of Pis.’ Mot. for Prelim. Inj., Sept. 30, 2011, at 1-2 [Dkt. #32] (“We have been unable to identify any indication in the legislative history that Congress considered the First Amendment implications of these changes or of the warnings requirement generally.”). And when one considers the logical extension of the Government’s defense of its compelled graphic images to possible graphic labels that the Congress and the FDA might wish to someday impose on various food packages (i.e., fast food and snack food items) and alcoholic beverage containers (from beer cans to champagne bottles), it becomes clearer still that the public’s interest in preserving its constitutional protections – and, indeed, the Government’s concomitant interest in not violating the constitutional rights of its citizens – are best served by granting injunctive relief at this preliminary stage.

That last highlighted is important when it comes to how the Supreme Court could rule in the Obamacare cases.

Before going any further, the New York Times had an unlikely piece about a smoking cessation effort that seems to work:

Recently, though, experimenters in Italy had more success by doing less. A team led by Riccardo Polosa of the University of Catania recruited 40 hard-core smokers — ones who had turned down a free spot in a smoking-cessation program — and simply gave them a gadget already available in stores for $50. This electronic cigarette, or e-cigarette, contains a small reservoir of liquid nicotine solution that is vaporized to form an aerosol mist.


After six months, more than half the subjects in Dr. Polosa’s experiment had cut their regular cigarette consumption by at least 50 percent. Nearly a quarter had stopped altogether. Though this was just a small pilot study, the results fit with other encouraging evidence and bolster hopes that these e-cigarettes could be the most effective tool yet for reducing the global death toll from smoking.

There is opposition; just not by who you might think it would be:

But there’s a powerful group working against this innovation — and it’s not Big Tobacco. It’s a coalition of government officials and antismoking groups who have been warning about the dangers of e-cigarettes and trying to ban their sale.

The article points out that the FDA tried to ban the sale of e-cigarettes until it could perform further “testing” but the ban was smacked down by the courts. As a result, the FDA has used obfuscation and demagoguery to maintain the pressure to keep Americans from purchasing e-cigarettes, even though several smaller medical associations see no reason for preventing their use. In other words, the government wants to control how smokers should quit their habits, control the people, instead of allowing these Americans to find their own solution.

And that’s where another Obamacare case comes in. In a surprise ruling, Reagan appointee Laurence Silberman of the D.C. Circuit Court of Appeals wrote the 2-1 opinion (joined by the Carter-appointed Harry Edwards, who wrote a concurring opinion) upholding Obamacare’s mandate. It’s surprising as Silberman is known as one of the more originalist judges on the D.C. Circuit. Even as Silberman (along with Edwards) makes frequent references about how Congress’s Commerce Clause powers are limited, he expands them anyway. To be fair (up to a point), lower court judges are required to follow Supreme Court precedent where it is appropriate; yet, even here there are all kinds of judges who make things up all the time, which we’ve seen time and again in the 9th Circuit.

Silberman relies mostly on the Depression-era unconstitutional Wickard ruling in order to justify his expansion of the Legislative Branch’s Commerce Clause powers. In that case, Congress allowed Sec. of Agriculture Wickard to force the market to maintain a high price for wheat. Farmer Roscoe Filburn was growing more wheat than he was allowed to, wheat he had no intention of selling. The government saw this a threat to their economic forecasts and fined Filburn. As mentioned by Silberman:

Either way, these economic forecasts–and not any affirmative acts by people like Filburn–were enough to sustain the law.

Here’s what the Commerce Clause says: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. If you notice, there is no mention of the government’s economic forecasts. In fact, the Due Process Clause (“No person shall…be deprived of life, liberty, or property, without due process of law”) specifically prohibits actions against those like Roscoe Filburn. Of course, that’s if all things were equal and the Judicial Branch actually used the Constitution when issuing it’s rulings, which wasn’t the case in Wickard.

Nor is it the case when Silberman ruled for the government. This is proven near the end of his opinion [emphasis mine]:

That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before–but that seems to us a political judgment rather than a recognition of constitutional limitations. It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family. The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins.

This is a license for Congress to avoid having to amend the Constitution when the government claims it needs to ignore it, which is quite amazing considering how the Supreme Court required the Bush administration to shut down their Gitmo military tribunals while the U.S. is at war because they were deemed (wrongly, in my opinion) unconstitutional, even though a nation at war is far more of an emergency than how a government manages its long-term health care costs.

Silberman’s opinion is an echo of the chilling opinion written by Justice Stevens’ wholesale bastardization of the Takings Clause (“…nor shall private property be taken for public use, without just compensation.”; it’s right after the Due Process Clause linked to above) in the infamous travesty Kelo v. New London [bold emphasis mine]:

Those who govern the City were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference. The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including–but by no means limited to–new jobs and increased tax revenue. As with other exercises in urban planning and development, the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.

The Takings Clause clearly states eminent domain cannot be used unless there is a public use for the property taken, which has meant things like public schools, government buildings, roads, and the like. Stevens decided to expand, unconstitutionally, that meaning; the financial interest of any level of government outweighed the individual rights that are supposed to be guaranteed by the Constitution. Justice O’Connor wrote a blistering dissent calling out the majority for illegally rewriting the Constitution:

To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property–and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment.

The great Justice Thomas was far more harsh in his own dissent [emphasis mine]:

The Court relies almost exclusively on this Court’s prior cases to derive today’s far-reaching, and dangerous, result…But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham’s high opinion of reclamation laws [citation omitted]. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning.

Thomas states that he would revisit those cases Stevens heavily relies upon, which would probably also be what he might say regarding Wickard when the Court eventually takes on these Obamacare cases. But the makeup of the current Court still makes that problematic. Of course, I refer to Justice Kennedy. He wrote a concurring opinion in Kelo that not only reaffirmed Stevens’ opinion, but illegally added the phrase “economic development” to the Takings Clause, thus negating it completely. It would not be out of the realm of the impossible to believe Kennedy would agree that the government’s needs allows it the power to steamroll the Constitution.

Judge Brett Kavanaugh, whose confirmation to the D.C. Circuit was held up for three years by the Democrats (this was before Democrats said it was bad for judicial confirmations to be held up, provided the nominee in question was appointed by a Democratic President), wrote a long dissent in the Obamacare case. He claims the 1867 Anti-Injunction Act requires courts to dismiss all claims against the government until the individual mandate takes effect in 2014; that law disallows any suit against the IRS prior to a tax taking effect. Kavanaugh calls the penalty a tax that would be covered by the Anti-Junction Act and believes and judgement on the Commerce Clause merits of the mandate are premature. He does include many warnings about what could come about if the courts uphold the individual mandate; but, his opinion would seem to state the law would have to take full effect before there could be any ruling.

And if that isn’t enough, the Obama administration seems to believe that it needs to improve the image and marketing of Christmas trees. Yeah. And to do so, they are slapping a new, albeit small, “fee” (ie., tax) on Christmas trees to pay for it. Here’s a little piece of advice I’m offering free of charge to this administration: neither the image of Christmas nor the various aspects of the holiday need to be improved by the government; I would say it is the Obama administration that needs to improve its own image towards Christianity and Christmas, not the other way around. I wonder if the ACLU is going to sue on Establishment Clause grounds? I would support such a suit only because this program is so stupid.

This post has been a huge downer. So, it’s time to end it with an appropriately funny bit:

Cross-posted at Scipio the Metalcon.

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