Tell Watson to Buy Her Own Bacon!

Don't think President Obama is using federal spending to buy votes? Well, the recipients of his generosity with our money sure do.

Detroit Councilwoman JoAnn Watson publicly argued that President Obama owes the City of Detroit a bailout or, as she phrases it, "some bacon." Why? Because Detroit voters supported Obama. Here's the money quote:

"Our people in an overwhelming way supported supported the re-election of this president, and there ought to be a quid pro quo."

Keep in mind that we have already bailed out Detroit's auto industry (for now), yet the city has still struggled under decades Democratic leadership that has resulted in astonishing corruption and ineptitude.

And yet, Watson wants the rest of us to pay the price.

Well, I think we should tell her no.

You can find Watson's public profile here, and her public e-mail address is WatsonJ@detroitmi.gov. Let's send her an e-mail telling her to buy own damn bacon.

Ryan T. Darby practices law in San Diego, and he buys his own bacon.

Obama Wants Revenue Increases?

President Obama made an interesting comment about his purported willingness to compromise on a tax plan that involves "revenue increases" during a news conference last week:

"I am open to new ideas if the Republican counterparts or some Democrats have a great idea for us to raise revenue, maintain progressivity, make sure the middle class isn't getting hit, reduces our deficit, encourages growth. I'm not going to slam the door in their face; I want to hear ideas from everybody."

However, his prior statements suggest President Obama refuses to acknowledge the historic fact that increasing capital gains taxes decreases revenue, while decreasing it actually increases revenue.

In a 2008 primary debate against Hillary Clinton, moderator Charlie Gibson asked the following simple question:

"[I]n each instance, when the [capital gains] rate dropped, revenues from the tax increased; the government took in more money. And in the 1980s, when the tax was increased to 28 percent, revenues went down. So, why raise it at all, especially given the fact that 100 million people in this country own stock and would be affected?"

President Obama answered with mindblowing obstinance:

Well, Charlie, what I have said is that I will look at raising the capital gains tax for purposes of fairness. And you can't do that for free.

In other words, candidate Obama did not mind raising the capital gains tax for the simple reason that he found it fair—not economically intelligent (or even literate) but fair.

Well, some people want to improve the economy; others prefer to dictate their vision of "fairness" upon others, regardless of the consequences. Hopefully the President has matured beyond this juvenile stance over the past four years, but I doubt it.

Obama Wanted Criminal Trial for bin Laden

An upcoming book indicates that President Obama wanted to provide Osama bin Laden with a criminal trial if captured alive. If true, this is further evidence that Obama views terrorism as a criminal matter, rather than an act of war.

According to the AP: "author Mark Bowden quotes Obama as saying he thought he could make a strong political argument for giving bin Laden the full rights of a criminal defendant, to show U.S. justice applies even to him."

Well, Mr. President, military justice is U.S. justice for war criminals. Our criminal justice system exists to protect individuals who avail themselves of its protections, such as through birth or proximity. Masterminding an act of war against the United States from an Afghan cave hardly availed bin Laden of these protections.

Furthermore, it would be just plain silly to apply criminal law to bin Laden. Should we have expected Seal Team 6 to read bin Laden his rights? Would any subsequent confession be deemed inadmissible for failure to do so? Would we "out" our intelligence assets (or, should I say, more of them) so bin Laden could confront his accusers? And what about evidence that was obtained without a warrant? This would all be very troubling from a legal perspective.

I have no doubt that a criminal trial against bin Laden would have yielded a guilty verdict—the outcome just isn't in dispute. And that would make it a show trial. We maintain our criminal justice system because defending the rights of the accused is a high priority in this country, and a show trial would make a mockery out of those rights. And, more dangerously, the desire to host such a trial indicates the dangerous criminal-vs-military approach to terrorism that emboldened al Queda in the lead-up to the September 11th attacks.

Ryan T. Darby practices civil law in San Diego. 

The Switch in Time that Saved an Illegal Fine

Ongoing allegations that Chief Justice John Roberts based his deciding vote in NFIB v. Sebelius on his vision for the Supreme Court’s political reputation—rather than the Constitution—harkens some historical comparisons. Some commentators approvingly compare the Chief’s savviness of John Marshall; unfortunately, it would appear that Chief Justice Charles Hughes is a more apt comparison.

First, the Marshall comparison. In the landmark 1803 case of Marbury v. Madison, Chief Justice Marshall faced two unsavory alternatives: rule against the hostile President Jefferson and watch the president humiliate the Court by ignoring its ruling, or reluctantly give Jefferson the ruling he wanted. Marshall shocked everyone by ruling in Jefferson's favor, while (of far greater historical significance) announcing that the Court had assumed a brand new power: judicial review, marked by the ability to strike down laws the Court deems unconstitutional. This is now regarded as the judiciary's strongest constitutional power, and Jefferson did not protest it because the Court gave him what he wanted.

Daniel Epps argues in The Atlantic that Roberts demonstrated similar initiative: rather than play into the administration’s ongoing criticisms of the Court’s supposed Republican bias and risk damaging its reputation and influence, Roberts “juked” by giving Obama the ruling he wanted. However, Roberts rejected the administration’s primary contention that the Affordable Care Act comports with the Commerce Clause, and hung his hat instead on the Taxation Clause—thereby arming Republican critics with election year ammunition that Obamacare amounts to a tax increase.

It is a compelling theory…but it ultimately misses the point that Roberts’ switch resulted in a monumental expansion of federal regulatory power. The Court’s opinion that the individual mandate violated the Commerce Clause certainly restores some measure of sanity to that body of law, but the expansion of the Taxation Clause renders the Commerce Clause largely moot. After all, if Congress can simply bypass the Commerce Clause by regulating activity through the guise of taxation, then who needs the Commerce Clause? The Taxation Clause apparently (under this ruling, at least) offers Congress all the legal justification it needs.

Furthermore, it appears that Roberts ruled in large part to pacify an administration that appears intent on bullying the Supreme Court into obedience. After all, President Obama has bullied the Court during press conferences and (infamously) during his State of the Union address. And it seems to have worked.

President Obama has treated the Court with the same hostility as Franklin D. Roosevelt, when the Court overturned parts of his prized New Deal legislation. Roosevelt famously denounced the Court as imposing a “horse-and-buggy” interpretation of the Constitution on the American people. Infamously, Roosevelt threatened to pack the Court with additional justices who would implicitly cast favorable votes. This caused the Court to unexpectedly rule in favor of the New Deal legislation, in what history came to recall as “the switch in time that saved nine.”

However, a closer look at the historical record shows that Congress did not support the court-packing bill and would not have passed it. Moreover, the “switch” caused harm to our Constitution that has still not been repaired to this very day. Therefore, for all intents and purposes, the “switch in time” was an unnecessary measure that caused immeasurable constitutional damage.

Similarly, the Roberts Court faces no clear and present danger of becoming irrelevant. The threat of criticism? Obviously. But newsmakers only criticize relevant institutions, and facing criticism is the price of making difficult decisions about controversial laws.

How ironic is it, then, that the Court now faces an avalanche of criticism? Roberts’ apparent worry of being criticized for playing politics has come true—it just comes from the right, rather than the left. The Chief apparently did play politics, and the American public is calling him on it. Too bad that our Constitution also fell casualty to this game.

Thus, the effects of Roberts' switch in time: (1) growing allegations of the Court's politicization; (2) evidence that the President can bully the Court into obedience; (3) implementation of a wildly unpopular law; and (4) a massive expansion of the Taxation Clause that may haunt American jurisprudence for decades to come.

Along with an illegal fine.

Ryan T. Darby practices civil and public interest law in San Diego.