Barack Obama has spent significant time that could have been spent dealing with the economy, shoring up his base over the last few years.  After the mandate election of 2010, he pushed through repeal of DADT for gays, he half heartedly looked toward the DREAM Act for Hispanics, this year he mandated that Church organizations pay for contraceptives and chemical abortions and is currently pushing his Buffet tax on the rich.  He is doing what any presidential candidate must do to shore up his base.  He realizes that any strong candidate must build his base on rock in order to truly be strong going into November.

Last night, Mitt Romney used his five state sweep to officially kick-off his general election fight with Obama, which arguably occurred a few weeks ago following his win in Wisconsin.

While Romney is looking towards picking up independents in November, he has still failed to shore up his base, and that is a major problem.

In two weeks, Mr. Romney will speak at Liberty University’s commencement (my alma mater) in an effort to kiss the evangelical ring.  That is a nice gesture.  The problem is that you convince people you are with them through policy suggestions, not vague promises.  While there are many people in my hometown that are happy to have Romney come, there are many that are not and that is a problem for him.  It is not just the division between Christian and Mormon doctrine that leave evangelicals feeling weary, it is his policies from Massachusetts and past stands against religious values in the past that leave evangelicals feeling luke warm.

The point is, if Romney wants to make his upcoming speech in my hometown mean anything, he needs to tell the evangelical community what fig leaf he plans to offer us.  If he wants the trust of the Church, which is  a large part of his base, despite what you may have heard, vague promises won’t be enough.   He will win no friends by failing to promise policy changes on life, marriage, adoption and religious liberties.  He needs a bold plan for moving the social conservative ball down the field rather than a routine for managing moral decay.  If he has a prayer of winning in November, he is going to need to shore up his base by the time of the convention, otherwise, his foundation will be built on sand.  And, as every Christian knows, a house built on sand will wash away.

Earlier this week, I had the misfortune of watching Meryl Streep’s “The Iron Lady”.  Harvey Weinstein must have given it this title due to its constant theme that she was cold, stupid and ambitious.  Before we begin, this site has endeavored to give accurate and unbiased film reviews in the past, and will do so again.  However, this film earns every ounce of denunciation.

( See here: http://griffinelection.wordpress.com/2012/03/12/game-change-movie-review/)

The Iron Lady is a biopic of the great Prime Minister of Britain, Margaret Thatcher.  Thatcher and her leadership of the conservative party in Britain played a vital role in returning the country to growth and prosperity in the 80′s.  She also played a pivotal part in standing up to communism in the 1980′s.

But that wasn’t what the movie was about.  The movie starts off with an elderly Thatcher living alone with dementia.  I wish I could say it moved on from this theme, but the entire film was about Thatcher’s dementia and merely peppered in moments of her life.

Her younger days were portrayed the same as her golden years.  The film flashbacked to a time when she was insecure as a young girl, which presumably pushed her into politics.  The film flashed to a sequence where she was fiscally irresponsible leading to a war, a scene where she placed career ambition in front of family, a sequence where her children chased her car down the driveway beating on the windows and screaming as she left for her first trip to Parliament, as if she had not even told them she was departing.  Then there was the sequence outlining her defeat, which the film implied she deserved.  The movie portrayed her as cold and short-sighted when she was young and crazy when she was old.

There was little mention of her leadership skills, her partnership with Ronald Reagan to kill communism and her fiscal responsibility.  There were numerous shots of rioting anarchists burning buildings and vehicles in protest of her leadership.  Yet, there was not one shot of her supporters.  Not one frame demonstrating how much Britain loved her.

This was a hit piece properly done.  It wasn’t necessarily filled with mis-truths, but it successfully painted a portrait of the darkest points and acts in one woman’s life while intentionally avoiding the vast positive impact she left on the world.  It was, as Thatcher’s children called the film a “left-wing fantasy.”

The movie left me feeling down that anyone would set out to tarnish the legacy of such a great leader in such a bold and in-your-face style.  They didn’t even try to hide their bias.  It was a shameful film.  Near the end, I was forced to turn it off because the focus on the sickness of an elderly lady was too much for me.  Thus, I cannot recommend this film and only wish I could receive my $1.26 back from the redbox.

Please, don’t let my agony be in vain.

griffinelection.com

Here we are in April, Mitt Romney will be the GOP nominee in November.  Most republican voters don’t want him but are stuck with him.  It is a great thing that the American voter got their say in this process.  But these voters will get their say again in November.  What about members of the conservative movement and republican party?  Shouldn’t they have a say?

This site has written at length about the fact that states like New Hampshire, Florida and Michigan — all states likely to go blue in November have essentially chosen our candidates for us.  Every time Romney almost went down, he would bounce back with a win in a dark or light blue state.  Romney didn’t have the support to win the nomination, liberals and independents put him over the top.

Consider what Major League Baseball would look like if the Redsox were to decide which Yankee pitcher New York would sign and start?

For republicans, open primaries in blue states completely taint our process.  At this point, Mitt Romney has sewn up the race.  1.3 million New Hampshirians saved Romney’s nomination.  Then Michigan.  Finally, Wisconsin.  At the same time, many states haven’t even voted yet.  States that matter.  The states left to vote include red and purple states such as:

Pennsylvania, Indiana, North Carolina, West Virginia, Arkansas, Kentucky, New Mexico, South Dakota and Texas.  Why shouldn’t these states get a say in the process?  The state that sent Rand Paul to the Senate shouldn’t be part or our process?  One of the greatest states in the nation — Texas, filled with the most sincere and moral people you will ever meet shouldn’t get a say in this process?
Does the Republican party think Illinois, American Samoa, Northern Mariana Islands, Guam and the Virgin Islands should have more say than Texas and Pennsylvania?  The reason nothing changes is because party leaders like it this way.  They believe that a primary filled with left-leaning states helps correct course and prevent ultra-conservative or even joke candidates from getting too far in the process.  But last I checked, no fringe candidates got very far in the conservative states this time around.

The only true way to reform the system is for state parties and state legislatures in these conservative states to unilaterally reschedule their primaries.  They will no doubt be penalized this time, but it is worth it.  We’re not advocating that Texas become the first-in-the nation primary, although that wouldn’t be a bad idea, this is simply advocating a system that expands Super Tuesday or some of the other contests in March.

The republican base hasn’t truly been thankful for a candidate since the 1980′s.  Isn’t there something wrong with that?  Shouldn’t we consider bold change on this front?  Blue & open primary states have chosen another loser for us in 2012.  It is time that we talk to our state legislators about moving the primaries up in these secondary-citizen-states.  We should continue to get involved in our local parties so that we may have a say against the status quo.  GOP voters deserve to get a say in these contests, they deserve primary reform.

As America continues to plant fresh economic roots in an attempt to prevent further erosion, the President continues his crusade against . . . ancillary matters.  He is doing so by barnstorming the country by pushing what his spin team has dubbed, “the Buffett rule.”

This is the pattern that we have seen before.  Obama passes the stimulus bill in the hopes of getting the economy turned around and then spends most of the first two years pursuing a healthcare bill.  He gets Cantor’s JOBS act passed last week and then pivots to an issue that isn’t going to get Americans working again, isn’t going to make us more competitive in the global markets and that does nothing to increase productivity, etc.

The Buffett Rule, is a guarantee that families bringing in one million dollars or more annually will pay at least 30% of it in taxes.  It would effect approximately 433,000 households and effects 0.3% of all American taxpayers.  Currently, millionaires pay a tax rate as high as 35% on earnings, while most pay, on average approximately 19% with deductions.

The strategy of calling it the “Buffett” rule stems in part from Mr. Warren Buffett.  Buffett himself is a strange case.  He is constantly calling for his own taxes to be raised.  First of all, he is not a millionaire, he is a billionaire.  Secondly, while he is certainly allowed to call for higher taxes while paying lower taxes, it seems disingenuous.

For all of the pushback from the left when Obama is accused of wanting European style soft socialism, the strategy for calling the tax “the Buffett rule” came from a European country that demonized a successful billionaire translating the gimmickry into enough capital to pass an increase.  It worked there, Obama’s team figured, why not here.

Oddly, the White House hasn’t argued that passing the bill would get Americans working again.  They haven’t argued that it will work to close the deficit, balance the budget or create any tangible benefit to America at all.  They have argued that it should be passed for this reason: fairness.

That’s right, in the middle of a recession, the president is making his priority overall fairness.  His priority isn’t getting poor kids more educational opportunities, breaking up big banks to prevent another meltdown or lowering taxes on start-ups, it is, to quote the White House, raise taxes “as a basic rule of tax fairness.”

It is bad enough to discuss raising taxes to balance the budget.  It is entirely worse to tout a tax increase in order to make things “fair”, defined by a Democrat.  If I were a democrat, I would argue that tax increases are necessary to balance the budget, but I would never argue that we needed to do so to be fair.  Almost one in five Americans already consider themselves to be in the top “one percent.”  Many more Americans than that believe that if they work hard enough, they will one day become part of the maligned “one percent.”

While this site has refrained from referring to Obama as a radical (with the exception of his anti-life stance), this legislation is beyond the pale.  The difference between a moderate president and a president moving towards radical is simple.  A moderate tries to right the course of the country through the president’s own partisan worldview.  Like FDR, the president’s solution may be very far to the left, but is in service to correcting a national problem.  Alternatively, a radical attempts to push the country toward the fringe without a tangible benefit to the nation except to serve his worldview.  In the first instance, the worldview acts as a means to an end.  In the second case, achieving the worldview is the end game.

The sad thing for President Obama is that in a year when he will face a candidate as weak as John McCain or Bob Dole, he is still going to be in a tight race.  The reason it will be tight is because while most Americans know that they like Obama as a person, they recognize that he isn’t really capable in the field of macro-economics.  The feeling in America is that Obama himself doesn’t really have the answer.  If Obama keeps going down these rabbit trails that hardly raise any revenue but instead act to go after the successful, he may find himself having a race on his hands with Mr. Romney after all.

The Buffett Rule failed in the Senate last week and the House will not be bringing it up.  The plan was never to pass it but to play politics.  This is simple partisanship and class warfare.  Class warfare is defined not as recognizing the growing income disparity between the middle and upper class, but demonizing successful demographics in order to create jealousy and resentment in the masses for the purpose of winning elections.

While Mr. Romney will not be able win in 2012 by creating fear in the electorate, neither will Mr. Obama.  Mr. Obama should stop wasting our time with this gimmickry and do what he can to grow the economy and lower unemployment, that is what the American people want from him.

Rick Perry’s largest accomplishment since giving up his bid for the GOP presidential nomination has been under-covered in the conservative media but is a story worth telling.  It is also worth mentioning for a few other reasons.  First, pro-abort Senator Kay Bailey Hutchinson has joined the left in hitting the Governor for not supporting the pro-abort movement with tax payer money.  Second, in researching sources for this article, there is very little on the right concerning Texas’s brave move to protect women and unborn babies from Planned Parenthood.

A little background.

Texas forbids taxpayer money from going to fund abortions.  At the same time, the federal government pays the bills for Planned Parenthood (PP).  This enables PP to perform some women’s health services and perform abortions on the unborn by freeing up their budget.  Earlier this year, the Texas legislature took the next logical step for a pro-life legislature and cut off taxpayer funding to health care facilities that performed abortions itself or through affiliates.

Instead, Texas took millions of dollars and shifted care to facilities that do not provide abortions.  The change presents its own difficulties as many women have been forced to new facilities.  But Texas is assisting women in finding new facilities and care providers during the policy change.  Additionally, the Texas legislature and Governor Rick Perry are continuing to look for ways to expand healthcare services to women through non-abortion providers.

Although Planned Parenthood and its surrogates are outraged, the message makes perfectly logical and consistent sense.  For Americans who take the scientifically-backed view that life begins at conception, a group like Planned Parenthood is radical and was founded, partially to lower minority populations.  Groups like this shouldn’t be propped up with taxpayer money.  Furthermore, abortion has a negative impact on women including post abortion syndrome as well as the an increased risk of breast cancer, as cited by Komen for the Cure.

For too long, PP has had the government keep the lights on and pay the bills enabling it to perform abortions on minority and low income women.  They have consistently and successfully painted themselves as vital to women’s health.  But over the last few years, state legislatures across the nation have rightly been asking whether there isn’t a better alternative available for America’s women.

In the end, the Texas legislature approved and Governor Perry signed a law that allows Texas to determine the rules of eligibility for abortion providers and their affiliates under Medicaid.  Texas, correctly argues that it is the State’s right to determine eligibility for the grant.  But Mr. Obama and Ms. Sebelius do not agree.

The Obama Administration has determined to punish Texas for touching the Holy Grail of the left by cutting all women’s healthcare funding to Texas.  Thus, what should have been a smooth transition, allowing healthcare facilities whose goal is saving life, not destroying it, has been politicized even further by the White House.  Now, Texas no longer has the funds to effectively administer proper healthcare to its women — not because of Planned Parenthood, but because the White House is withholding funding from women to score political points.  All of the women’s health funding.

Yet, republicans are being accused of being radical.

The states act as experiments to the nation.  PPs nationwide do little outside of reproductive “services.”  PP refers out for mammograms and performs no surgical procedures outside of abortions.  Many women have great stories about how PP helped them when they were young, poor and struggling, these vital services should continued to be paid for by the government.  And Planned Parenthood may continue to operate, but the government can uplife other care groups.  There is no reason these tasks can’t be performed by medical care groups that value life.

The White House should put women before the powers that be at Planned Parenthood and provide Texas its full funding to take care of the women that need it.  Although Obama usually gets good press for governing center-left, the abortion issue has been one where he has staked out a flag far to the left of the country.

Obama’s decision to cut the legs out from underneath women’s care services paints his administration as the real villian of this story.  In contrast, Texas is working on a plan to completely fund women’s health services through the state by the end of the year.  Texas should be commended for such a bold act of leadership in the face of federal pressure.  Well done.

griffinelection.com

This weekend, the GOP presidential nominee went to the NRA convention and attacked Obama on his gun control record.  The GOP nominee said that we need a president who will enforce the gun laws we have rather than create new ones.  The only problem is that Obama has a better gun control record than the GOP nominee.  It is the GOP nominee who said, “I don’t line up with the NRA.”  The anti-second Amendment Brady Center has consistently given Obama low ratings for his failure to restrict the Second Amendment.  It is our nominee who signed the first permanent assault weapons ban in the country.  Our nominee who supported the Brady Bill.  Our nominee who supported the five-day waiting period.  It is our nominee who was against gun rights until he decided to run for president.

WHAT IS THE POINT?

The goal here isn’t to weaken the GOP nominee, but it is to point out that the negative, dishonest campaign that won the GOP nomination against a batch of weak primary challengers without the money to fight back won’t defeat Mr. Obama.  When you hear David Axelrod speak, you know this is a guy that is ready for Romney.  This is a guy salivating at the mouth to take on Romney.  Axelrod wants to make sport of Romney and he is going to have the money to do it.

Here is the point, the GOP has made its bed, now it has to sleep in it.  We have a candidate that we can’t really compare and contrast with Obama because his own record is so . . . Un-conservative.  These independent voters that the party seems to want to woo more than its own base, are not going to fall for the argument that Obama is too liberal on gun rights.  Sure, the GOP can argue that he has put liberal judges on the bench, but there isn’t much to support the assertion that he has directly endangered gun owner’s rights.

We are going to need a message.  As the economy continues to self-correct, that becomes a heavier lift.    Our candidate isn’t a social conservative, so that is off the table.  He hasn’t been a friend to the Second Amendment, so that is off of the table.  He will quickly find that Obama is going to shred him apart if he attempts to discuss Obamacare, with Romneycare lurking in the background.  He can’t go after Obama on foreign policy because there is nothing to say.  What is our nominee’s message?  This election is increasingly looking to be a head-to-head match-up rather than a referendum on Obama.  Obama doesn’t plan to pass any more legislation until next year.  When he isn’t working, people love the guy.

The war on moms message is a start, but we don’t need to hear anything about 78 socialists or Obama’s war on guns.  We need a coherent honest message.  It is fine to ask if Americans are better off now than they were four years ago, but we must also make the case that we can do better.

A top politico story yesterday focused on the push-and-pull of republican voters and Mitt Romney’s top supporters.  Apparently, the Romney campaign has struggled to find a balance between the views of his voting base and three of his donors on creating a new right to gay marriage.  I sincerely hope that this story isn’t true.

Barack Obama is going to change course and declare his support for gay marriage prior to the election.  He would be a fool not to.  In 2008, he ran as a social moderate.  Obama has been signaling that his views on traditional marriage are “evolving”.  He will change.  The Romney campaign seems to think it may have to move toward the middle on this issue.  Nothing could be further from the truth.

The Romney campaign has sewn up the nomination.  But the strategy it is now pursuing is baffling.  He isn’t bringing together the right and he isn’t endearing himself to the middle.  And now he is considering moving away from his stance on marriage.

Conservative groups need to be careful.  This week, National Organization for Marriage endorsed Mitt Romney for President, even though he presided over Massachusetts as it became the first state in America to declare gay marriage a constitutional right under the puritan constitution.  Earlier this week, the pro-life lifenews.com sent out alerts reminding pro-life supporters that the number one goal was defeating Barack Obama in 2012.

The question is — is that the ultimate goal?

Is the number one job of pro-life groups this year to elect a formerly pro-choice governor who won’t commit to overturning Roe?  Should pro-marriage groups commit to Mitt Romney?

Defeating Barack Obama is very important.  For the GOP it should be the number one goal.  But special interest groups can’t be in the business of selling their souls for a win.  There is a lot of races to get involved in without dedicating all resources to the former Massachusetts governor.  That is not to say that this site wishes the Governor’s campaign ill will.  It is simply to say that win or lose, we are all going to have to look at ourselves in the mirror the morning after the election next winter.  I hope we don’t get so desperate to beat Obama that we forget who we are.

Many conservatives have come out in recent days with full throated endorsements of the Supreme Court’s policy of judicial review.  It is so ingrained in our political and legal culture that it is difficult to imagine an America where the Court didn’t have the power to deem legislation unconstitutional.  If judicial activism is defined as a court creating new rights that are not outlined or expressed in the text of the Constitution, then judicial review was the first case of activism at the Supreme Court level.

Prior to the adoption of the United States Constitution, the idea of judicial review was well-entrenched in legal circles.  England had utilized the practice before the revolution while courts in the U.S. had voided legislation as prohibited by state constitutions.   The idea of judicial review was alive and well when the Constitution was adopted.  Strangely, the power was never mentioned in the Constitution.  Some have alluded to statements made at the constitutional convention as proof that the founders intended for the Court to possess the power, but conservatives have to recognize that although the power had been conceived at the adopting of the Constitution, Article III fails to mention any such power granted to the Court.

Conservatives are consistent in pointing out that our federal government is one of limited powers.  Our Constitution does not assume that our government has plenary power that may be limited.  It instead, assumes that the federal government has no power, except the enumerated powers granted to it in the Constitution.  In fact, the Tenth Amendment, which we regularly tout when citing government overreach drives the point home.  If a certain power is not delegated to the federal government through the United States Constitution, the government does not possess such a power.

Article III clearly and concisely lays out the power of the Supreme Court.  The Court may hear cases:

Affecting leaders and ambassadors;

Admiralty and maritime law;

Suits against the U.S., between states and citizens of different and foreign states; and

Finally, the Court has appellate jurisdiction where Congress allows.

That is it, that is the Court’s jurisdiction, there is no language regarding the ability of the Court to void legislation passed by the Court.  It isn’t in the Constitution.

Section 2 states that “[t]he judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.”  This is where proponents of judicial review, base their argument as implied.

There is no doubt that section 2 defines the jurisdictional power of the Court.  But it is a bit of a stretch to state that this jurisdictional power allows for the overturning of legislation.

To be clear, reasonable minds can disagree on this one.  Judicial review isn’t a sham but it is an overreach.  To be sure, President Jefferson and other contemporaries of the time were very surprised to learn of Chief Justice John Marshall’s handling of Marybury v. Madison.  The President stated that Marshall took the Constitution and made it “a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”  He was right.

Acceptance of judicial review has become commonplace in our framework.  But what is most surprising is many conservatives argument that this is part of the separation of powers and checks and balances.  An unelected group of judges can overturn legislation passed by the other two branches of government.  That doesn’t create a co-equal branch of government, but rather a branch that is powerful enough to overturn anything that the other two branches work to pass.  It puts us on a path to an oligarchy.

And here is another question, if the Court acts as a check on Congress and the President, who acts as a check on the Court?  Must we pass a Constitutional Amendment by overwhelming majorities and ratify it through all fifty states in order to overturn the will of nine people or Justice Kennedy alone?  That seems to be the only check or balance those in favor of judicial review would leave for the High Court.

Politically speaking, many argue that the Court is the protector of the Constitution and therefore a good and necessary thing, however, the opposite has been true.  Throughout the centuries, the Court has acted as a political body that acted to reinforce the greatest social tragedies of our times (think Dred Scott) while only passing positive judicial legislation (think Brown v. Board of Education) after it was becoming fashionable.

Like any political body, the Court has gotten some decisions right and some decisions wrong.  The objective of this piece isn’t to encourage full opposition to judicial review.  It certainly has its benefits to a republic.  It is simply to point out the dangers of relying on the Court to set things straight, so to speak.  If there is one thing U.S. history teaches us about the courts, it is that we can’t always rely on them to be a bulwark for Constitutional liberty against the majority.  The Court, in Planned Parenthood v. Casey, ignored the protection of life outlined in the Fourteenth Amendment instead choosing to rely on it’s own judicial review.  Judicial review has elevated the Court’s “opinions” to Constitutional law, and that may be the most dangerous legacy of judicial review over the long run.

Should the Supreme Court determine the Affordable Care Choices Act’s individual health insurance mandate is unconstitutional, the next logical question will be whether it is severable from the overall law.  The answer is no, the entire bill must be thrown out.  That is not to say the entire bill will be thrown out.  In fact, it is unlikely that the Court will have the willpower to declare the entire bill unconstitutional.  But legal principles dictate that it should be.

While there are parts of the law that the American people favor such as the provision regarding preexisting conditions and family healthcare plans, the law itself was not built to withstand a Constitutional attack.

Will the law still work if the heart is cut out?

The Court is concerned with leaving a bill that won’t work.  The Court’s job is to determine constitutionality but it would hate to leave a bill without a key provision that renders it a bill that never would have passed.  The Court has always been extremely vain in protecting its reputation and is not seeking to drop a fiscal nightmare on the American people.

The Court will be unlikely to take a scalpel to the language of the law, cutting out the unconstitutional and leaving the rest, if what is left is an unworkable disaster that cannot exist without the symbiotic relationship of the mandate.  Without a funding mechanism, the expanded care portion of the bill falls to pieces.

In oral arguments, the government failed to articulate how the mandate could be severed from the rest of the bill without upsetting the carefully crafted balance with expanded, universal care.  The conservative justices seemed to believe that the insurance companies would find themselves in a financially untenable position and they are right.  The entire foundation of expanded care was contingent upon bringing tens of millions of new healthy payers into the system.  Without these new customers, the insurance companies cannot fund the program.  The healthcare law doesn’t work without the mandate.

A house without a foundation might be propped up for awhile, but eventually it will fall and take it’s inhabitants with it.

Is it the Court’s duty to go line by line through thousands of pages?

Justice Scalia joked during the hearing about who would be in charge of going through the bill to cut out the unconstitutional provisions should the bill be deemed severable.  Would it be the justices?  The law clerks?  Should the Court dedicate itself to one bill for the entire term?  Should the Court be forced to correct the legislature’s sloppy bill writing?

Should the Court not strike the entire bill, how many questions will soon follow?  Should the Church be forced to purchase and provide abortion pills?  Should insurance companies be forced to accept people with expensive illnesses onto the rolls when they never paid into the system when they were healthy?  There could be hundreds of Constitutional questions in such a far reaching bill.  Democrats wanted a “comprehensive” bill.  They got it.  But it should be Congress who is forced to fix these problems, not the Court.

The Court may have to overturn the entire law and force Congress to go back to the drawing board.

No Severability Clause

The biggest argument in favor of severability comes down to the law itself.  Unlike virtually every other piece of legislation, this health care law, in thousands of pages, failed to include a severability clause.  A severability clause, which is present in most legislation, declares that should one provision be struck down, the rest of the bill remains standing.  This bill fails to include such a provision.

Some pundits have opined that democrats intentionally left out the mandate in order to pressure Courts to uphold the entire law upon challenge.  Others believe it was simple incompetence.

The reason most bills include such a clause is because the judiciary views a bill in light of the whole otherwise such a provision would not be necessary.  Democrats don’t seem to believe that the lack of such a clause is important or determinative.  It is.  Should one important provision go down, the entire bill must go down with it.

Would Congress have enacted the bill with the mandate?

Another central question of severability is whether the bill would have been passed without the clause.  Here, the bill likely would not have been passed in this instance because in order to bring the insurance companies and healthcare industry to the table, the government had to insure that there was a manner in which to pay for such a provision.

The pre-existing conditions clause and the expanded coverage principle would both fail if their was no funding measure in place.  The mandate was going to pay for the rest of the bill.  Adding tens of thousands of new and healthy customers is what would pay for the entire rest of the bill.  Without the mandate, the bill wouldn’t have obtained the support of centrist fiscally conservative democrats and it wouldn’t have received votes from the left on a bill that didn’t provide for “universal” healthcare coverage.

Here, the lack of a severability clause again becomes important as it becomes difficult to show Congress intended the law to stand without a severability clause.  Without a severability clause, Congress seems to have indicated that the law cannot stand without the mandate.

To save or protect?

Of course, Justice Ginsburg phrased the Court’s role in all of this as a “salvage job” rather than a “wrecking” crew.  Unfortunately, it is not the Court’s job to save legislation.  It is the Court’s job to save the Constitution, to protect it from legislation that falls out-of-bounds.  And it isn’t republicans or the Supreme Court that is acting as a wrecking crew.  Democrats in Congress passed a sloppy bill through reconciliation that they couldn’t find the votes to vote for again.  When a building collapses on its own, you don’t blame a wrecking crew.

The questions Justice Ginsburg should be asking is:

If the mandate is deemed unconstitutional, did Congress intend for it to be severable from the rest of the bill and even if it did, is it within the Court’s purview to go through the legislation line-by-line striking each provision that is deemed unconstitutional.  The answer to both is a resounding no.

The Court will not strike down the entire bill because it is an entity that is as partisan as the legislature.  It isn’t within the interest of the Court to overturn a law that the Congress spent a year passing.  The Court will certainly find a way out of this one.  But that doesn’t mean the law will be on their side.

Last week, President Obama took on the Court, questioning its authority to overturn a validly passed Congressional law.

Good for him.

For a week now, republicans have feigned outrage at the suggestion that the Court’s opinion wouldn’t remain supreme.  Only a few weeks ago, Newt Gingrich was espousing the same sentiments.

See here: http://griffinelection.wordpress.com/2012/01/12/newt-gingrich-is-a-friend-to-dred-scott/

And here: http://griffinelection.wordpress.com/2011/12/20/newt-is-right-we-need-to-reel-in-scotus/

These republicans have acted shamefully.  It is a widespread conservative belief that the Supreme Court is overreaching and unaccountable.  Justice Kennedy alone may overpower the will of the people and leaders of the United States.  That isn’t right.  It isn’t Constitutional.  And it isn’t what our founders intended.

If the executive and legislative branches ever plan on standing up to the judiciary, it will have to be on a bipartisan basis.  For republicans to attack the president on this one is small minded.  Judicial review is stooped in tradition more than law.

We could only wish that we had a republican that would challenge the Supreme Court to carefully consider what it was doing before overturning laws.

Proponents of judicial review argue that the checks and balances of the system allow the Court to wield such power.  Yet, the Court’s power over the other branches of government is seemingly absolute.  The court may overrule almost any law it deems “unconstitutional.”  On top of that, the Court created its own power to review and has set its own parameters as to what is out of bounds.  Republicans and Democrats have resigned themselves to the fact that the Court truly will reign Supreme and simply attempts to get nominees that will legislate in their partisan direction.

If we want to adopt judicial review as domestic policy, fine.  Let’s do that.  But let us only do so on the enumerated powers laid out in the Constitution.  Not every single legislative issue falls under the purview of the Courts.  The Democrats won a super-majority in 2010 and they passed a terrible bill.  The proper check and balance is what happened in 2010 and what we are trying to accomplish in 2012.  Repeal.

The Democrats of 2010 broke Senate procedural rules by passing a non-budgetary bill through the reconciliation process.  It was wrong and unethical.  Mitch McConnell (R-KY) should have had the guts to stop it.  Outside of that, and a whole lot of questionable earmarks, the bill was passed legitimately.

To be clear, we have to take a nuanced position here.  It is wholly right to challenge the Affordable Care Choices Act in the Supreme Court.  The reason being that this is how the game is played.  We can’t sit back refusing to challenge legislation in the Courts as democrats dismantle our legislative achievements in the courts.

Although President Obama apparently disagrees with Super PAC’s, he realizes that you can’t effectively fight with one hand behind your back.  We have to use judicial review because if we don’t, we lose an even bigger battle.  But that doesn’t mean we shouldn’t work to change the legal culture towards the judicial supremacy.  The Supreme Court is supreme over all other courts, not over all other branches of government.

This method of attack is now accepted in our legal culture and for that reason we must continue to fight on all grounds.  However, when democrats give us the opportunity to erode the court’s power, we shouldn’t spurn them for short term political gain.  We should embrace it.  The Supreme Court is out of control.  We can’t reel it in on our own.  The judicial review of duly passed legislation is something we accept as a reality of our legal system.  It doesn’t have to be.  President Andrew Jackson didn’t think it was.  None of the founders accepted it.  We shouldn’t either.

The biggest thing I resent about President Obama’s words in taking on the Court last week, is that we don’t have a Constitutional law professor President on our side willing to make the case for judicial overreach.