The Law is not what it says: (again!)

SCOTUS Chief Justice, John Roberts, did it again this week. He proved my point (again) when I posted here last April the fact that The Law is Not What it Says. That’s right. He just wrote the 6-3 majority opinion in King v. Burwell, (the ObamaCare case) confirming that the law is not what it says -- it’s what he says. 

This makes it twice now – two times in a row – Justice Roberts has confirmed that, when it comes to the ObamaCare law, that law is not what it says – it’s what he says.

The first time around, Roberts decided that what Congress had intended and expressly stated in the law was a “penalty” wasn’t a penalty – it was a “tax.” Now he’s decided that what Congress intended and expressly stated that only policy holders in a state created insurance exchange may qualify to receive federal premium subsidies, means that policy holders in federally created insurance exchanges can qualify for subsidies too.

Let me see if I understand Justice Roberts correctly:

The text of the ObamaCare law passed by Congress stated plainly and unequivocally that individuals and businesses that refused to buy the insurance coverage would be subjected to a financial “penalty” every year. The proponents of the law maintained consistently during the congressional debates that it would be a “penalty” – not a “tax.” That’s because the proponents knew full well that the law would never be passed if it contained a new tax. So the plain intent of Congress then was that this would be a “penalty.”

When the issue found its way to SCOTUS the lawyers on both sides of the case insisted again and again that the law created a “penalty” – not a “tax.” That’s what they argued in their court briefs. That’s what they maintained consistently during oral arguments before the Court. Indeed, that’s what the law plainly provided. Everyone knew that.

The problem for the proponents of ObamaCare was that, if the Court were to agree with them that Congress intended, and the law plainly provided, that it was a “penalty” and not a “tax,” then the Court would have been obliged to strike down the law as unconstitutional because the government may not force individuals to buy something by penalizing them for failure to do so. On the other hand Congress does have constitutional powers to tax individuals as a means to finance laws and other regulatory schemes. 

Justice Roberts and the four other left leaning justices on the Court, fully cognizant of these facts, simply disregarded the plain text of the ObamaCare law; the plainly expressed intent of the Congress; as well as the positions of counsel. They just wanted to uphold the constitutionality of ObamaCare no matter what so they decided that the “penalty” was not really a penalty but a tax. That’s the only reason why ObamaCare is the law of the land today. The law is not what it says – it’s what SCOTUS says it says.

Now, Justice Roberts, the four lefties, and Justice Kennedy have ignored once again what the law says because they just don’t want ObamaCare to come unraveled. Knowing full well the congressional history of the law and the clearly expressed intent of its drafters that policy holders in federally created insurances exchanges would not be eligible for premium subsidies, (Congress wanted a strong incentive for all the states to create their own exchanges); they simply disregarded the facts and the plain text of the law.     

When Congress said “state exchanges,” they meant federal exchanges too, despite their intent to the contrary, held the 6-3 majority...

Because the law is not what Congress intended; the law is not what it says: (again!) 

N-word Hysteria

During a radio interview last week President Obama used the so-called “N-word” in a purely historical context while discussing the topic of race relations in America:

"Racism, we are not cured of it. And it's not just a matter of it not being polite to say nigger in public," said the President. “That's not the measure of whether racism still exists or not. It's not just a matter of overt discrimination. Societies don't, overnight, completely erase everything that happened 200 to 300 years prior."

Judging by the public outcry from all directions immediately afterward, one would have thought he had committed a murder. That’s because in America today there exists a very large segment of the population terminally afflicted with a sickness in consciousness I call “N-word” hysteria.

These pitiful anal retentive neurotic souls simply do not tolerate any usage of that term by anyone anytime no matter what the context, historical or otherwise. Such use is strictly forbidden by the present day cultural word police. The mere utterance of that word sets their hair on fire. It renders them into a sorry state of irrational foaming at the mouth apoplexy.

The White House released a statement saying that this is not the first time the President has used the N-word. "Truth is he uses the term about a dozen times in Dreams from my Father," said White House Deputy Press Secretary Eric Schultz.

Why shouldn’t he? That word is part of our history.

Now, I’ll be one of the first to admit that the “N-word” has long ago been considered a pejorative term; a word most often used by racists as a derogatory label referring to blacks. At a minimum its use is impolite in the same way that words like “wetback,” “spic,” “chink,” or “kike,” are considered impolite; and downright racist if the speaker is employing them as a derogatory label intended to identify a specific person or group of people.

There are lots of impolite words in the English language. Yet no mere word is worthy of generating hysteria regardless of how or why it is used. After all, they are just words. Words alone cannot cause harm. When I say “N-word” everyone knows exactly what it means. No one becomes upset when “N-word” is said. But some people go ballistic when “n*****” is said; it’s irrational; it’s ridiculous.

The “N-word” originated in history a neutral term referring to black people. It was simply a colloquial derivation of the word Negro, which was a derivation of the Latin adjective “niger” meaning the color black. Just like the term “critter” is a colloquial derivation of the word “creature,” the N-word began as totally benign and non-pejorative.

The great British and American authors of the 19^th century, Charles Dickens and Mark Twain, for example, both created characters in books that used the colloquial “N-word” referring to blacks as it was commonly used then with no derogatory or pejorative intent whatsoever. Many blacks, even to this today, use the “N-word” to refer to each other with no offense intended.

When I was growing up during the late 1940’s and 1950’s, the “N-word” had become out of fashion largely because by this time it was mostly used by racists as a derogatory label referring to blacks.  Racism was still quite prevalent in America then.

Polite folks used the words “Negro” and “colored” to refer to blacks. Blacks preferred those terms then. The late Rev. Dr. Martin Luther King, the greatest American civil rights leader of all time, used those terms liberally in every speech right up until the day he was assassinated. “Negro” and “colored” had absolutely no pejorative or derogatory connotation then.  All the civil rights leaders used those words to refer to their people.

Eventually, during the 1960’s, the terms “Negro” and “colored” were considered offensive by some blacks. They preferred the term “blacks.” Today most blacks are offended by “Negro” and “colored.” In fact, most black people today would rather be referred to as “African American” than “black.”

The evolution of the “N-word” to “African American” is factually absurd. Why, for example aren’t white people referred to as European Americans? Why can’t we just all be Americans without any regard to color or ethnicity?

I can confidently predict that one day, perhaps sooner than later, even the term “African American” will be considered pejorative and derogatory by polite society. 

Yes, soon we’ll be witnessing “A-word” hysteria in America just like we have “N-word hysteria now.

What happened to due process?

The grieving families of nine victims of the Charleston Church shootings this week have my profound sympathies and sincere condolences for their horrible losses at the hands of the deluded homicidal maniac who did it. The perpetrator of this senseless crime must pay the full price proscribed by the law for his act.  

Yet as heinous and vicious as this hate crime was, the accused defendant is still entitled to due process of law. The Bill of Rights, e.g. Fifth Amendment to the United States Constitution guarantees him that basic fundamental right.

Now, I understand that the suspect in custody, Mr. Dylann Roof, has confessed to this crime. Even so, due process requires at a minimum that the law presume him innocent unless and until he is afforded a fair trial and convicted in a court of law. The law is supposed to presume him innocent during every phase of the prosecution until evidence adduced in court establishes court his  guilt beyond a reasonable doubt.

That’s why as a lawyer and officer of the court I watched in horror and disbelief today as the Judge presiding over the defendant’s initial bond hearing simply tossed due process of law right out the courthouse window. The accused was presumed guilty by the judge and everyone else in that courtroom right from the very start of the proceedings.

And it made me wonder what happened to due process in Charleston South Carolina?

Judge James Gosnell opened the hearing with a lengthy statement having nothing whatsoever to do with the proceedings. He rambled on about how Charleston is a strong community, “We have big hearts... we’re a very loving community... and we’re going to reach out to everyone; all victims... and we will touch them... we have victims; nine of ‘em, but we also have victims on the other side... there are victims on this (the defendant) young man’s side of the family... nobody would have thrown them into the whirlwind of events that they have been thrown into... We must find it in our heart at some point in time, not only to help victims, but to also help his family as well... It’s all done in sadness...”

After reciting the charges against Roof, the Judge advised that his first appearance court date (arraignment hearing) will be on Oct 23, 2015, and second appearance court date (preliminary hearing) on Feb 5, 2016. Then, before his consideration of the defendant’s appropriate bond the court asked whether any of the family members of the victims wanted to be heard.

Several of them were allowed to address their grief, together with accusations and presumptions of guilt directly to the handcuffed and heavily guarded defendant who appeared expressionless on video from another room at the jail:

“I forgive you,” declared Ethel Lance, 70, in tears. "You took something very precious from me and I will never talk to her ever again. I will never be able to hold her again. But I forgive you. And have mercy on your soul."

"We welcomed you Wednesday night in our bible study with open arms." said Felicia Sanders to the accused. "Every fiber in my body hurts... And I'll never be the same."

"Although my grandfather and the other victims died at the hands of hate, this is proof everyone's plea for your soul is proof that they lived and loved and their legacies will live and love. So hate won't win and I just want to thank the court for making sure that hate doesn't win," said Alana Simmons to Roof.

“I pray God on your soul and I also thank god that I will be around when your judgment day comes with him. May God bless you," Bethane Middleton Brown told the defendant.

"I forgive you," said Anthony Thompson to the accused. "But we would like you to take this opportunity to repent. Repent, confess, give your life to the one who matters most: Christ. So that he can change it, can change your ways no matter what happened to you and you'll be OK. Do that and you'll be better off than what you are right now."

Mind you, all of this occurred in the courtroom at his initial bond hearing, i.e., before this defendant was even arraigned on the charges, before he had any opportunity to enter a plea on the charges, before any preliminary hearing was held to establish probable cause to charge him with the crimes, and certainly long before his trial and conviction by evidence establishing his guilt beyond a reasonable doubt.  

In short, this man was simply presumed guilty by the judge and the public at his initial hearing. He was denied fundamental due process by all concerned while his court appointed attorney looked on without offering the slightest opposition or objection.

I’m told there is a statute in South Carolina which provides that the families of victims may be heard in this fashion at all proceedings involving the accused. If that is so, that statute is patently unconstitutional in my opinion and this defendant’s attorney had a solemn obligation to challenge it.  His failure to do so amounts to legal malpractice.

I don’t blame the victim’s families here. But the place and time for them to grieve, pray for, and offer forgiveness to the murderer of their loved ones is at their church, their homes, or in their hearts -- and perhaps, of course, at a sentencing hearing after the defendant has been duly convicted of the crimes by due process of the law.  It certainly is not in the courtroom during the initial bond hearing of the accused when the constitution mandates that the law – especially the judge -- presume him innocent.

We should all wonder: What has happened to due process?

Postscript: The Justice Department said today it is expediting a $29 million grant to go toward victim assistance in Charleston. How about that? The victims’ families are going to divvy up $29 million of our taxpayer money for this. Why them but not all the other victims of crime in the US? WTF! 

Trumping the GOP

I’ve criticized Donald Trump many times on these pages and rightly so. (See here; here; here; here; here; and here.) That’s because he seemed to always be saying he was running for president but backing out at the last minute because he was never seriously going to do what he said he would do. He just wanted attention. He was a fraud. 

Here’s what I wrote about what he said back in May of 2011, for example:

"I will not be running for president as much as I'd like to," Donald Trump declared suddenly yesterday, after dominating the media headlines over the past six months about how much he loves his country; how he was running for president for the good of the nation; how he was going to “kick China’s ass,” “stuff the oil cartels,” “make the world stop laughing at us,” create jobs,” “undo ObamaCare, and solve all the nation’s financial problems.

The entire charade of his potential candidacy then was a lie; a bombastic, entertaining, but empty hoax. It was pure bullshit. It was a bald faced fraud. He did it all to make money, and he’s made money on it. He did it for publicity; name recognition, and he got plenty of that. He did it for his own personal promotion and self aggrandizement – to show how important he is and how many people he could fool. 

That is the business of Mr. Trump – marketing Donald Trump. He’s brilliant at it. He was promoting his TV reality show then, “The Celebrity Apprentice.” And it worked. The TV ratings skyrocketed. He made big money.

Despite all my personal admiration for the man, his successful business career, and yes, his cogent political ideas, sadly his valuable personal credibility, integrity and reputation for honesty added up to zero with me right there and then. And I wondered why anyone should ever believe another word he said.

Well, last Tuesday he did it again, only this time he actually declared that he is indeed running for president. Too bad he has lost his credibility, not only with me, but with the GOP and the American people. He’s not going to win the nomination. Oh, he’ll get a lot of attention alright, which is what he wants, but he’s not going to be our next president.

I listened carefully to his speech and found myself thinking once again: Wouldn’t it be great if we Americans once and for all elected a president with the competent take charge attitude, and cogent political ideas of a guy like Donald Trump?

The fact is that I agreed with nearly 100% of what he said:

“Our country is in serious trouble... We don’t have victories anymore... When was the last time anybody saw us beating, let’s say, China in a trade deal? They kill us... When did we beat Japan at anything? They send their cars over by the millions, and what do we do? When was the last time you saw a Chevrolet in Tokyo? It doesn’t exist, folks. They beat us all the time... When do we beat Mexico at the border? They’re laughing at us, at our stupidity. And now they are beating us economically. They are not our friend, believe me. But they’re killing us economically.”

“The U.S. has become a dumping ground for everybody else’s problems... Last quarter, it was just announced our gross domestic product — a sign of strength, right? But not for us. It was below zero. Whoever heard of this? It’s never below zero... And our real unemployment is anywhere from 18 to 20 percent. Don’t believe the 5.6. Don’t believe it... China has our jobs and Mexico has our jobs... Our enemies are getting stronger and stronger by the way, and we as a country are getting weaker. Even our nuclear arsenal doesn’t work.”

“...Putin and all of the other people that look at us and they say, “That is a group of people, and that is a nation that truly has no clue. They don’t know what they’re doing. They don’t know what they’re doing.”

“We have a disaster called the big lie: ObamaCare... it came out that costs are going for people up 29, 39, 49, and even 55 percent, and deductibles are through the roof... And remember the $5 billion Web site? $5 billion we spent on a Web site, and to this day it doesn’t work... I have so many Web sites, I have them all over the place. I hire people, they do a Web site. It costs me $3.”

“... politicians are all talk, no action. Nothing’s gonna get done. They will not bring us — believe me — to the promised land. They will not... I’ve watched the politicians. I’ve dealt with them all my life. If you can’t make a good deal with a politician, then there’s something wrong with you. You’re certainly not very good. And that’s what we have representing us. They will never make America great again. They don’t even have a chance. They’re controlled fully — they’re controlled fully by the lobbyists, by the donors, and by the special interests, fully.

“I’ll bring back our jobs from China, from Mexico, from Japan, from so many places. I’ll bring back our jobs, and I’ll bring back our money... Right now, think of this: We owe China $1.3 trillion. We owe Japan more than that. So they come in, they take our jobs, they take our money, and then they loan us back the money, and we pay them in interest, and then the dollar goes up so their deal’s even better... How stupid are our leaders? How stupid are these politicians to allow this to happen? How stupid are they?”

“... the people negotiating don’t have a clue. Our president doesn’t have a clue. He’s a bad negotiator...  He’s the one that did Bergdahl. We get Bergdahl, they get five killer terrorists that everybody wanted over there... We get Bergdahl. We get a traitor. We get a no-good traitor, and they get the five people that they wanted for years, and those people are now back on the battlefield trying to kill us. That’s the negotiator we have... Take a look at the deal he’s making with Iran...”

“I’m a free trader. But the problem with free trade is you need really talented people to negotiate for you. If you don’t have talented people, if you don’t have great leadership, if you don’t have people that know business, not just a political hack that got the job because he made a contribution to a campaign, which is the way all jobs, just about, are gotten, free trade terrible... Free trade can be wonderful if you have smart people, but we have people that are stupid. We have people that aren’t smart. And we have people that are controlled by special interests. And it’s just not going to work.”

“Save Medicare, Medicaid and Social Security without cuts. Have to do it.... Get rid of the fraud. Get rid of the waste and abuse, but save it. People have been paying it for years. And now many of these candidates want to cut it. You save it by making the United States, by making us rich again, by taking back all of the money that’s being lost.”

“Renegotiate our foreign trade deals...  Reduce our $18 trillion in debt, because, believe me, we’re in a bubble. We have artificially low interest rates. We have a stock market that, frankly, has been good to me, but I still hate to see what’s happening. We have a stock market that is so bloated. Be careful of a bubble because what you’ve seen in the past might be small potatoes compared to what happens. So be very, very careful.”

You see, Donald Trump isn’t concerned with global warming, climate change, income inequality, common core, gay marriage, culture wars and all the other insufferable bullshit subjects the other candidates are constantly babbling about. He’s talking about competently fulfilling the actual constitutional duties of President of the United States. He’s talking about things that matter.

If only he could pull it off. He might regain his credibility with me.

For now I think his ideas are trumping the GOP. 

Where has freedom gone?

When I was a wee lad every summer my mother would let me make big batches of Kool-Aid and set up a folding card table stand in front of our house to sell it to the neighborhood kids for a nickel a cup. Lots of kids were doing that for fun and profit in the summertime back in the 1950’s. It seems that there was more individual freedom then.

Now I wonder where freedom has gone.

That innocent childhood entrepreneurial activity would most likely be considered illegal today unless the kid got permission in advance from the government. That’s right. A kid can’t set up a front yard Kool-Aid stand in America today without a government permit. The government today treats kiddie Kool-Aid stands the same way as it does nuclear power plants. They got to get a permit.

Two little girls in Texas found that out the hard way last week when their mom let them set up a lemonade stand in their yard only to be busted by the cops and shut down for the “crime” of not having a $150 “Peddler’s Permit.” They criminally conspired to raise the sum of $100 by selling lemonade to neighborhood kids so they could take their dad to Splash Kingdom for father’s day.

You can’t do that in Texas today without prior permission from the town statists. It’s illegal. After they were busted the town authorities magnanimously agreed to waive the $150 fee for a “Peddler’s Permit,” but they then discovered that permission was also necessary from the local health department.

You see, Texas law prohibits the sale of any food items that could spoil without proper temperature control so the statists also require that a health inspection be conducted before a permit is granted.

Have you ever heard of a kid getting food poisoning from a neighborhood kiddie Kool-Aid or lemonade stand during the entire history of civilization? Neither have I, but statists in the USA today don’t want anything done without a permit and the costly fees that go with it.

 "We have to follow by the state health guidelines. They have to have a permit if they're going to do the lemonade stands," insisted the town’s chief of police who claims he was just following the law. I wonder what happened to the discretion cops used to have back in the good old days.

Nothing apparently is discretionary these days. In 2011 a group of kids who set up a lemonade stand outside the Congressional Country Club in Montgomery County, Maryland, were fined $500 for not having a vendor's permit.

Where has freedom gone?

The Problem with Rick Perry

The problem with Rick Perry as a candidate for President of the United States is the same problem he shares with most of the other Republican Party presidential hopefuls and a major reason why they’ll have difficulty doing well in presidential elections.

He’s a nice man with some good political ideas just like all the others but unfortunately his avowed goal as a politician is to impose, not just his statist politics, but his ultra-right-wing religious beliefs on all of us whether we like it or not. There are just too many voters today who don’t.

Consider his stand on the issue of abortion, as just one example: "To be clear, my goal, and the goal of many of those joining me here today, is to make abortion, at any stage, a thing of the past," Perry declared to a group of his Right to Life supporters.

Now, I can understand and appreciate rational arguments supporting the opinion that some reasonable restrictions on abortions are valid such as prohibiting late term procedures unless necessary to protect the health of the patient, but no reasonable person can go along with the banning of all abortions regardless of the circumstances simply because some religious belief determines that “God” wants it that way.

That’s his religious belief. Rick Perry believes that “God” wants it that way and therefore he’s determined to do anything and everything in his power to ban or otherwise restrict as much as possible all abortions regardless of the circumstances and irrespective of the right to liberty interests involved.

"While Roe v. Wade prevents us from taking that step, it does allow states to do some things to protect life if they can show there is a compelling state interest. I don’t think there is any issue that better fits the definition of 'compelling state interest' than preventing the suffering of our state’s unborn," says Perry.

As governor of the State of Texas, Perry signed into law a requirement that pregnant women seeking their reproductive rights receive a mandatory ultrasound, “... because we believe that unborn children deserve the respect of recognition before their lives are tragically cut short." 

He wants to shame the pregnant woman in an effort to change her mind. Obviously, an ultrasound is not a compelling state interest but an unnecessary and costly medical expense which has nothing to do with her health and everything to do with Perry’s religious beliefs and his intent to impose them upon her.

Perry also took steps to exclude Planned Parenthood from Texas’ subsidized women’s health program solely because that organization assists women in realizing their reproductive rights which is not in accord with his religious beliefs. Likewise, he urged lawmakers to pass a bill which would ban any abortion after 20 weeks gestation, i.e. long before a fetus is considered viable outside the womb.

His latest victory involves a federal court decision that upholds Texas laws which regulate abortion clinics with the same requirements imposed on surgical centers. The affect of this is that many currently operating abortion clinics in the state will be forced to close thereby making abortions much less available to women seeking them.

"Again, the ideal world is a world without abortion," said Perry."Until then, however, we will continue to pass laws to ensure abortions are as rare as possible under existing law." That is hardly a compelling state interest. It’s his own personal religious interest.

If Rick Perry has his way every victim of rape in the USA – perhaps even his own wife or daughter, perish the thought -- would be forced to carry the seed of her rapist to term. Every victim of incest would be forced to bear the result of the crime and carry the psychological consequences of it for the rest of her life. Every pregnant woman whose life is imperiled by her condition would be forced by the state to take the risk – all because Perry’s “God” wants it that way.

That’s the political flaw and the problem with Rick Perry.

Cop Watching Criminals in Texas

Cops in the State of Texas want to criminalize cop watching with a camera within 25 feet of the action. So they convinced a state lawmaker in introduce legislation which would establish a 25-foot buffer zone around cops engaged in their policing activities with the public.

Any persons photographing cops within the 25 feet zone would be guilty of a crime. Cop watchers who might be legally carrying a firearm would be required by the law to keep a distance of 100 feet. The law would apply to everyone including journalists.

Now, in my mind there is only one reason why any cop would want such a law. They’re afraid of the possibility of being held accountable for their actions so they don’t want the public filming them too closely. They want the authority to stop and arrest cop watchers with cameras.  They want to violate First Amendment constitutional rights.

The First Amendment protects the right of all persons to videotape cops who are acting in plain view so long as they do it in a manner which doesn’t impede the cop’s ability to perform his duty. Filming a cop performing his job in plain view for all to see cannot alone be deemed to impede his activities. In short, watching a cop is not by itself obstructing his ability to do his job.  

So this proposed legislation is flatly unconstitutional. Even so, however, there are a lot of Texas cops who object to the proposed law because it doesn’t go far enough to restrict First Amendment rights.

Combined Law Enforcement Associations of Texas (CLEAT), the largest law enforcement association in Texas representing more than 19,000 active peace officers, claims that cops should have the authority to arrest any cop-watcher with a camera no matter how far away they are from the action.

These cops don’t want a buffer zone – they want no zone at all. They don’t want people watching cops. They don’t want to be accountable for their actions with photographic evidence of the truth.

They want to make cop-watchers criminals in Texas. 

Educational Probing by Coercion

You’ve heard of college professors probing the minds of their young students with difficult quizzes and tests in class, but I’ll bet you’ve never heard of college professors coercing female students against their will to undergo internal vaginal probes by their peers as part of a routine class activity.

Well, that is exactly what is happening at Valencia College in Orlando Florida these days. Two women have filed suit against the school and three professors for forcing them by coercion to undergo regular vaginal probes during peer physical examinations (PPE’s).

The ladies claim that the professors threatened to cut their grades if they refused to participate in the weekly vaginal examinations performed by other female and male classmates.  When they complained about it the coercion turned into threats of blacklisting in the medical community if they didn’t cooperate.

One of the professors reportedly used the occasion of a coerced vaginal probe to tell the victim that she was “sexy” and would make a good “escort girl.”

There it is. Some educational statists in America today apparently aren’t satisfied with the power to entertain themselves by probing their pupil’s minds; they claim the right to peer probe their vaginas as well.  

It’s just another example of educational probing by coercion.