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Monthly Archives: June 2012

There will be lots of analysis and spin today on the Supreme Court’s decision. But here is all you need to know. The Court got the Commerce Clause part right, but so what? They were never going to find the mandate within the power of the Commerce Clause. The Court, on the other hand, disregarded the position of the government and read the law to be a tax, and therefore within the power of the Constitution.

The Good:

The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl. 3 (emphasis added). The power to regulate commerce presupposes the existence of commercial activity to be regulated. This Court’s precedent reflects this understanding: As expansive as this Court’s cases construing the scope of the commerce power have been, they uniformly describe the power as reaching “activity.” E.g., United States v. Lopez, 514 U. S. 549, 560. The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.

The Bad:

In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because “every reasonable construction must be resorted to, in order tosave a statute from unconstitutionality,” Hooper v. California, 155 U. S. 648, 657, the question is whether it is “fairly possible” to interpret the mandate as imposing such a tax, Crowell v. Benson, 285 U. S. 22, 62. Pp. 31–32.

The Ugly:

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Representative Louie Gohmert has a succinct summary of the Court’s decision today.  The Supreme Court told us today “of course they are liars.  You should have known they were liars.”

“If America doesn’t wake up and replace all of those who lied to them to get this bill passed, them shame on us, we don’t deserve this nation.  It’s time we paid the price to preserve this gift we were given.  God help us and the people who love the liars.”  Gohmert sprinkled his speech with bits of the Declaration of Independence, including the “when in the course of human events” language.

The former Chairman of the House Judiciary Committee opines that Obamacare is Constitutional based on the “Good and Welfare” Clause.  Of course no such clause exists in the Constitution.  When you finish laughing at Conyers, consider how frightening his constitutional illiteracy really is.

Devoid of actual knowledge of the Constitution, lawmakers like Conyers have spent decades expanding federal power.  As Ronald Reagan said, the expansion of federal power necessarily means the loss of liberty.  So Conyers invents a “Good and Welfare” clause to justify government’s takeover of health care, and governments trampling of religious liberties.  When you’re done laughing at him, you should be angry.

DOJ vs. Florida: Round One, Florida

June 27th, 2012 - 5:56 pm

The Justice Department has lost the first round in the fight over removing foreigners from Florida voter rolls.

Recall that the radical lawyers in the DOJ Voting Section frantically sued Florida to stop the removal of foreigners from Florida voter rolls.  The DOJ lawsuit was a panicked and rushed response to Florida seizing the initiative and suing the Department of Homeland Security for failing to aid Florida’s search for foreigners on state voter rolls.  The DOJ claimed the purge plan violated Section 8 of Motor Voter, a statute the Holder DOJ has entirely failed to enforce to remove ineligible voters since January 2009. The DOJ hinted that the purge plan violated the Voting Rights Act but quickly abandoned that theory.

Today, DOJ lost round one, badly.  Justice sought a temporary restraining order to stop Florida from moving forward with detection of foreigners on the voter rolls.  The Palm Beach Post:

Hinkle denied the request for the emergency stop to the program in part because he said the state was no longer doing it.

But he also rejected Justice Department attorney John Bert Russ’s argument that the non-citizen voter purge violates federal law.

That last part is the most important.  DOJ took the radical position (what else is new) that Florida could not remove illegally registered non-citizens from the voter rolls within 90 days of an election.  The court rejected this interpretation of Motor Voter.

In fact, sources tell me that the Voting Section chief actually has agreed with the position of Florida in this legal circumstance.  He doesn’t believe that Motor Voter can preserve illegally registered voters on the rolls.  But these days, rational and thoughtful legal analysis at Justice has given way to partisan law enforcement.

This isn’t the end of the story.  Yesterday, True the Vote and Judicial Watch filed a motion to intervene to defend Florida’s non-citizen purge.  (Disclosure: I am listed as of counsel on the pleadings.)  True the Vote seeks to help Governor Scott enforce the law.  It’s a shame we have a Justice Department more interested in keeping foreigners on the voter rolls than prosecuting the ones who committed crimes when they illegally registered to vote.

Neither should this surprise anyone.  Since the early days of the Obama administration, this Justice Department has encouraged lawlessness and abandoned law abiding citizens.  Priorities, I suppose.

(Thumbnail image on PJM homepage assembled from multiple images.)

One of the chapters in my book Injustice is called “Through the Looking Glass.”  It describes a DOJ gone mad where people who lose cases are given cash awards and lunacy as government policy becomes the norm.  Now the same Civil Rights Division is mandating through regulations the use of guide-horses for the blind (as opposed to seeing eye dogs.)  The logic from DOJ:

“Miniature horses were suggested by some commenters as viable  alternatives to dogs for individuals with allergies, or for those whose  religious beliefs preclude the use of dogs,” the rules state.  Also  mentioned as a reason to include the animals is the longer life span of  miniature horses – providing approximately 25 years of service as  opposed to seven years for dogs.

“Some individuals with disabilities have traveled by train and have  flown commercially with their miniature horses,” the Justice Department  notes.

“Similar to dogs, miniature horses can be trained through behavioral reinforcement to be ‘housebroken,’” it adds.

A few years ago, this might have seemed an elaborate spoof.  But it instead shows what happens when you hire radicals into the Disability Rights Section at the DOJ, hires we covered here in the Every Single One series. These radicals are the ones writing these absurdist new regulations to micromanage American lives and businesses.  Not a one of them appears to have a career history in the private for-profit sector.  Which explains why we can expect horses in your local McDonalds or Target shortly.

Florida Governor Rick Scott’s voting case against the Holder Justice Department has taken a strange but predictable turn. Recall that radical lawyers in the DOJ Voting Section filed a lawsuit against Florida seeking to prevent the removal of foreigners from the voter rolls. Justice has now turned to the print media for “expert” statistical analysis on the racial impacts of Florida’s policies.

It turns out at least 50 of these foreigners have voted in Florida elections. If done in a federal election, this constitutes a federal crime. Yet why has the Justice Department not charged these individuals?

Of course we all know the answer – preventing the removal of the foreigners is more important to Eric Holder than prosecuting the ones who voted illegally.

Now comes the Justice Department’s attempt to obtain an injunction against Florida from proceeding with the removal of the foreigners. DOJ claimed that removal of foreigners would have a racially discriminatory impact. That is, more Hispanics would be removed than whites as a percentage of the population.

Well, so what?

Florida has punched back in this memo:

The fact that a program to remove non-citizen voters affects a large percentage of minorities is neither surprising, nor remotely indicative of impermissible discrimination. Any program that removes non-citizens from the rolls in Florida, even if 100% accurate, will undoubtedly have this result. But DOJ cannot and does not argue that the accurate removal of non-citizens has any impermissible disparate impact.

Translation: of course there will be a disparate racial impact when illegal foreigners are removed from the voter rolls. What else would you expect?  That alone doesn’t make it illegal.

DOJ’s purist and radical argument on this point would surprise nobody who has read my book Injustice. This species of radical racialism, where any difference in outcomes with a statistical correlation, justifies the flexing of federal power.

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President Obama’s assertion of executive privilege today is a bit like the kickoff for the NFL regular season. It doesn’t end the Fast and Furious scandal; it just takes it to another level. Everything so far was the pre-season. Now people will start to pay attention.

(Read my review of the book Fast and Furious here for a great primer on the scandal.)

A president doesn’t assert executive privilege lightly. It is a relic from the powers of the king. Some things were not for parliament’s eyes, such as national security statecraft. This new phase of the Fast and Furious scandal begins with Americans who had paid no attention to the scandal hearing the news today and asking, “what are they trying to hide?”

The new phase might possibly include members of the old media asking why the Most Transparent Administration in History, isn’t. Or, it might see them going all out to defend their president.

Pay attention to how often they use the term “botched” gun running operation. This is government-generated language. If you read Pavlich’s book, you know there was nothing “botched” about Fast and Furious except the architecture. The government wants you to think the builders screwed up, not the anti-Second Amendment architects.

One thing executive privilege can’t accomplish for Eric Holder is hiding his Department’s wrongdoing. Richard Nixon got that scolding from the Supreme Court in 1974 in a case deliciously named United States v. Nixon.

In that case, the Supreme Court held,

neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.

Executive privilege cannot be used to cover up criminal wrongdoing, such as lying to Congress.

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Dead Voters Found in Maryland

June 19th, 2012 - 4:56 am

While Eric Holder is busy preventing Florida from removing ineligible foreigners from the voter rolls, citizen groups are finding problems with the voter rolls elsewhere.  Election Integrity Maryland has found dead voters infesting the rolls in the state’s three largest jurisdictions.  They say:

Despite assertions by the Maryland State Board of Elections that voter registration records are kept up-to-date, the non-partisan watchdog group Election Integrity Maryland (EIM) has discovered names of deceased voters in Prince George’s County who remain on the voter rolls, as well as names of voters who have moved or who have duplicate registrations. Some voters are registered out of vacant lots, post office boxes and Mail Box stores.

Similar irregularities were discovered earlier this year by EIM in Montgomery and Baltimore Counties, and challenges have been filed in these jurisdictions as well. EIM plans to submit more challenges in other counties in the near future.

Don’t expect the Justice Department suddenly to start enforcing Section 8 of the National Voter Registration Act against Maryland and demand removal of dead and ineligible voters.  That wouldn’t help with the main task at hand – re-election.




The real scandal (as Hans von Spakovsky calls it) in the fight between Florida and the Eric Holder Justice Department is that Holder is ultimately defending foreigners voting in American elections.  Try that position on for size amongst the general public, and Obama’s campaign strategists aren’t going to like the outcome.

The Justice Department lawsuit against Florida will stop Florida from removing non-citizen voters from the rolls by freezing the entire purge process.  Justice claims that immediate removal of foreigners falls within time limits that restrict Florida’s ability to remove legitimately registered voters.

But a citizen of Guatemala isn’t a legitimately registered voter in Florida in the first place.  They committed a crime when they registered to vote. Florida and the Justice Department should be indicting and prosecuting these voters who falsely registered.

But maybe they made a simple mistake when the registered to vote? Nonsense.

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The DOJ filed a complaint against Florida today to stop Florida from removing ineligible non-citizens from the voter rolls.  (Yesterday DOJ, disgracing long-established tradition, leaked this impending news to a sycophantic blogger.)  Florida has already discovered noncitizens who voted illegally in previous elections.

The lawsuit filed today seeks to stop Florida from purging non-citizens from Florida voting rolls.  No word on whether Eric Holder’s Justice Department will be filing criminal charges against the foreigners who illegally registered to vote. Priorities lie elsewhere.

Let’s meet Jenigh Garrett, the radical DOJ Voting Section lawyer who filed the lawsuit today to stop Florida from removing non-citizens from the voter rolls.  She is a long-time opponent of state election integrity laws, as are so many of the recent hires exposed by the PJ Media Every Single One series.  From the report:

Jenigh Garrett: Ms. Garrett worked for approximately five years as an assistant counsel at the NAACP Legal Defense and Education Fund (LDF), where she worked on voting-related litigation. She co-drafted the NAACP LDF’s amicus brief in Crawford v. Marion County Board of Elections, claiming that voter ID laws are unconstitutional (a position the Supreme Court rejected in an opinion by Justice John Paul Stevens).

Garrett also was a member of the organization’s litigation team in Hayden v. Paterson, arguing that felon disenfranchisement laws violate the Voting Rights Act (a position the Second Circuit rejected). She is a member of the American Constitution Society and recently gave a presentation at Yale Law School on “The Future of Black Legal Scholarship and Activism.” Although DOJ’s FOIA shop notably redacted her other activities on her resume, perhaps legislators in Virginia can ask her about them: she is the redistricting point of contact for the Commonwealth.

Jenigh Garrett

(Read at PJ Media about another lawyer on the complaint, Elise Shore).

I describe in detail in Injustice how the radical anti-election integrity agenda of the Left is now burrowed into the Voting Section at the Justice Department advancing this agenda using your tax dollars.  Now these lawyers are perverting Section 8 of Motor Voter, a provision designed to fix the problems in Florida, not preserve them.

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