The Constitution

Property wrongs

Disaster averted, for now. Make no mistake, though—property rights in the US hang by a thread. People familiar with "critical environmental areas," "open space initiatives", and "aquifer protection initiatives" are real familiar with this.  At the Washington Times:

An Idaho couple facing ruinous fines for attempting to build a home on private property that the federal government considered protected wetlands may challenge an order from the Environmental Protection Agency, the Supreme Court ruled Wednesday in a unanimous decision.
The case was considered the most significant property rights case on the high court’s docket this year, with the potential to change the balance of power between landowners and the EPA in disputes over land use, development and the enforcement of environmental regulations.

Critics called the EPA action a clear example of overreach, as the property in question was a small vacant lot in the middle of an established residential subdivision in the Idaho Panhandle. The government argued that allowing EPA compliance orders to be challenged in court could severely delay actions needed to prevent imminent ecological disasters.

Justice Antonin Scalia, writing for the court, said that Michael and Chantell Sackett are entitled to appeal the EPA order, rejecting the agency’s argument that allowing landowners timely challenges to its decisions would undermine its ability to protect sensitive wetlands....

...The case stemmed from the couple’s purchase of a 0.63-acre lot for $23,000 near Priest Lake, Idaho, in 2005. The Sacketts had begun to lay gravel on the land, located in a residential neighborhood, when they were hit by an EPA compliance order informing them that the property had been designated a wetland under the Clean Water Act.

The Sacketts were ordered to stop grading their property and were told that they would face fines of up to $75,000 per day if they did not return the parcel to its original state. When the Sacketts attempted to contest the order, the agency denied their request for a hearing.

Justice Scalia noted that the Sacketts’ property bore little resemblance to any popular conception of a wetland, protected or not.

Reading a summary of his opinion in court, he noted that the Sacketts have never “seen a ship or other vessel cross their yard”...
A little snark from a it.
...Congressional Republicans, who had rallied to the Sacketts’ cause, called the Supreme Court ruling a clear rebuke to President Obama and his environmental agenda.
“This decision delivers a devastating blow to the Obama administration’s ‘War on Western Jobs,’” said Sen. John Barrasso, Wyoming Republican and chairman of the Senate Western Caucus. “This victory by one Western couple against a massive Washington bureaucracy will inspire others to challenge this administration’s regulatory overreach”...
But don't go to sleep; eternal vigilance is the price of liberty.
You can read the decision here.

The masks are starting to slip

Last spring, we spent a fair number of bits on the NY-26 race in which Dem Kathy Hochul won and replaced Republican Chris Lee who had resigned because of—well, never mind.

Hochul seemed surprised at the pushback from her constituents yesterday.  Oh my:

Ed Morrissey at Hot Air:

This claim from Hochul is categorically false:

“We’re not gonna agree on this one. I’m gonna tell you that I will stand for our religious freedoms. But I don’t see a conflict here. Now that there’s been an accommodation that says religious institutions do not have to provide these services. So we’re just going to have to disagree on that.”
They still have to provide insurance to their employees that includes free contraception and abortifacients.  Who pays for the insurance?  The religious organizations that get forced to facilitate those transactions, since they can no longer opt out of offering the insurance and must pay a large part of the premiums — and in some cases, the religious organizations self-insure, which means the money comes directly out of their pockets rather than indirectly.  Either way, they most certainly still do have to “provide these services.”  Hochul either is woefully misinformed or willfully lying to her constituents.
Beware.  People like Kathy Hochul are not your grandma's Democrats.

Taking a constitutional

Judging from e-mails going by the past few days, several people in the area are working out by participating in Hillsdale College's online Constitution 101 course. The Constitution never goes out of style but the course is particularly timely; Hillsdale President Larry Arnn points out that we as a nation really are at a fork in the road...we're going to have to choose between a constitutional model of government (limited, representative, with separation of powers and checks and balances) and what Arnn calls a bureaucratic model (in which agencies run by "experts" combine all three branches of government and operate without oversight).  Calling the latter model "bureaucratic," though, sounds almost innocuous. It's really much more insidious than that.

But some people understood Obamacare as a a chilling manifestation of Arnn's bureaucratic model even before there was an Obamacare.  We were warned (via New Zeal):

Arnn also points out that the Constitution and the Declaration of Independence are inextricably linked, an idea that the often-maligned (by progressives, anyway) Calvin Coolidge understood:

...If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions. If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people...

You can still register for "Constitution 101" at Hillsdale.  It's free.


"Regulatory impacts of the magnitude likely under EPA’s agenda—compliance costs in the billions, loss of coal-fired electric generation threatening the sufficiency of the nation’s bulk power supply and job loss in the hundreds of thousands—are ultimately policy choices, certainly not purely scientific decisions."

If you think we're heavily regulated now, you ain't seen nothin' yet.  Click on the image to go to the document in its entirety (h/t Jim):

Hartnett White notes that

...The current EPA is misusing the Clean Air Act (CAA)—enacted to protect human health—to force an anti-fossil fuel energy policy repeatedly rejected by Congress. Under cover of the broad law-like authority delegated to EPA in the CAA, the EPA increasingly acts like a fourth branch of government—one unaccountable to the three constitutional branches...

Really.  Like this:

The Hidden Cost of Fuel Economy Regulations: Constitutional Vitiation

Posted: 14 Feb 2012 07:36 AM PST

Post image for The Hidden Cost of Fuel Economy Regulations: Constitutional Vitiation

The Environmental Protection Agency and the National Highway Transportation Safety Authority project that their proposed Model Year (MY) 2017 and later light-duty vehicle greenhouse gas (GHG) emissions and fuel economy standards will engender net benefits ranging from $262 billion (assuming a 7% discount rate) to $358 billion (assuming a 3% discount rate). These projections are based on assumptions regarding vehicle cost, fuel prices, and consumer acceptance that may or may not be borne out by events. Skepticism is justified. If the proposed standards are as beneficial to consumers and automakers as the agencies contend, why wouldn‘t consumers demand and profit-seeking manufacturers produce vehicles built to the same or similar standards without regulatory compulsion? Fuel economy regulation assumes that auto buyers do not want to avoid pain at the pump and automakers do not want to get rich. Experts will likely debate for years the net benefits of the rule as data become available regarding vehicle costs and sales and auto industry profits and employment. In a comment letter on the regulation I sent yesterday to the agencies, I examine a cost most experts have not addressed: the damage the Obama Administration‘s fuel economy agenda does to our constitutional system of separated powers and democratic accountability. Read the letter here.

Lastly, Cicero's been on perma-hold again:

Visions of the Energy Future – 2012 to 2016

“You have reached the EPA’s Office of Fuel Allocation.  This number is for people who are still on the grid and whose homes are without adequate heat due to fossil fuel rationing.  Your government is committed to protecting our planet.  Your comfort should not be and is not our priority.

Please have your social security number, undesirable energy guzzling citizen identification number, birth certificate number, and your attorneys’ names, addresses, and secret passwords available.  Your call will be taken by our next available agent.  To get you the best service, our center takes calls from 10 AM to 3 PM, on Tuesdays and Thursdays.  Your approximate wait time to speak to an agent is 6 hours.

Please stay on the line.  Your call is unimportant to us.  If you are not on the line when the agent responds, you will go to the bottom of the queue.  If your call is still pending when the center closes, please call again our next business day.

If this is an emergency or if you are in imminent danger of freezing, press 1 and we will connect you to a cryogenics technician who can explain the freezing process to you.  If this is urgent, press 2, and enjoy our books on tape while you continue to cool down.  Today’s book is “How Obama Saved our Planet.”  If your issue is not time sensitive, press 3, turn on Skype, and enjoy a presentation of Gasland before being advised to call back later.  If you are a registered Republican, press 4, to be disconnected.

If you are a registered Democrat who is a Congressman, Senator, ex-President, or Cabinet Level or above, press 5 for VIP energy services.  The approximate wait time on that line is two seconds.  To press 5 allegedly in error or if you are not eligible is a federal felony, punishable by death.  In our experience, since all such officials are exempt from the Energy Control Act, no such official has ever been in danger of freezing to death.

Thank you for calling the EPA.  If you wish to know your energy allocation, press zero, the same number as your allocation.  Enjoy your brisk, cool days in twenty first century America."

—Cicero Romanus

Reductio ad absurdum

"I'm sorry, being forced to sell out your beliefs should not be a price you have to pay for going into business and taking on employees."

That's Tom Blumer at NewsBusters. He's writing about an editorial that appeared in the WSJ entitled "Immaculate Contraception":
Under the original Health and Human Services regulation, all religious institutions except for houses of worship would be required to cover birth control, including hospitals, schools and charities. Under the new rule, which the White House stresses is "an accommodation" and not a compromise, nonprofit religious organizations won't have to directly cover birth control and can opt out. But the insurers they hire to cover their employees can't opt out. If that sounds like a distinction without a difference, odds are you're a rational person.
If you're still having trouble wrapping your mind around the absurdity of the Obama administration argument, once again here's Bud and Lou to explain it all for you.  From contributor Tom Reynolds:
Abbott:     I see the Catholic Church will not have to offer abortion in their medical insurance plans.

Costello:  Their employees will not have insurance coverage for abortions?

Abbott:     No, their insurance company will have to cover it.

Costello:  But you just said the church doesn’t have to cover it.

Abbott:     They won’t, but their insurance carrier will cover it.

Costello:  So, the church will have to offer it.

Abbott:     No, just their insurance carrier.  It will pay for it for employees covered by the church’s policy.  The church won’t have to pay for it.

Costello:  So, who will pay for it?

Abbott:     The insurance company.

Costello:  Where will the insurance company get the money to pay for it?  

Abbott:     They will have to raise the church’s premiums.

Costello:  So the church will have to pay for abortions that are not covered by their insurance policy.

Abbott:     No, that’s not what Obama says.  The church won’t have to pay for abortions through their insurance policy.

Costello:  Wait a minute.  You just said that the insurance company will raise the church’s premium to pay for abortions.

Abbott:     Right.

Costello:  So, the church will pay higher premiums to pay for abortions.

Abbott:     Right

Costello:  But they won’t have to cover abortions in their insurance policy because they are paying for abortions by their insurance company.

Abbott:     Right

Costello:  Didn’t Obama say that Obamacare would not cover abortions?

Abbott:     That was just when he was trying to get it passed.

Costello:  And didn’t he say premiums would go down?

Abbott:     Yep.

Costello:  But you just said that the church’s premium would go up to pay for abortions it is not  covering.

Abbott:     Right.

Costello:  Won’t that conflict with the principles of their faith?

Abbott:     Obama has given them a year to work that out.

Costello:  So at the end of a year, the church will have to find a loophole in their principles so they can pay for abortions.

Abbott:     That’s basically it.

Costello:  What if God objects?

Abbott:     Obama has a rule that allows God to take an exception while not having any impact on abortion coverage. 

Costello:  How will that work?

Abbott:     They’ll require God to agree before he reads the agreement.

Costello:  What if God figures it out?

Abbott:     The Mayan calendar may turn out to be correct.

Oh, that guy on the right?  Another Tom.  Tom Aquinas.  Here at Redneck Mansion we appreciate a little claritas in our arguments.



An art history "teachable moment"

Barbarians at the gate? That painting behind BO is "The Sack of Rome."  Rich Terrell nails it again:

The Dixie Bricks

They seem like pleasant enough people but they're trying to make bricks without straw—utterly clueless. At New Zeal:

Van Jones promised back in November that the Occupy gang will put up over 2,000 candidates for election in 2012. After AIM’s Ben Johnson did some man-on-the-street pop quizzes in the south this past week, we sure hope they come through on Jones’ promise. Ladies and gentlemen: we present to you the fruits of public school social studies programs.


Opeining salvo challenging those "recess" appointments...there are sure to be others.  More unintended consequences for your delectation.

Suit was filed in the US District Court for the District of Columbia asserting that the interim appointments to the National Labor Relations Board are constitutionally invalid because there was no recess and that without valid appointments to the NLRB it lacks a quorum and under Supreme Court law cannot act on new rules or doctrines.

Long story short: there is no certainty to any NLRB action while this is pending.

Here you go.

Faded glory?: "Recess" appointments and the Constitution

We may often visualize the US Constitution like this:

when after more than 220 years it looks more like this:

The Constitution is fading in more than just a purely physical sense as contributor Publius Ithacanus notes in this essay:

The Vanishing Constitution
When the Constitution was created by the founders, they carefully divided and balanced power between the executive, legislative, and judicial branches of government.  Trusting in human nature, they were confident that each branch and each house of Congress would act to check abuses of power by the other(s).  Of course, they did not consider the influence of party, because parties as we know them did not then exist.
The latest victim of the disappearing constitution is the provision that specifies that key presidential appointments are subject to the advice and consent of the Senate and require Senate confirmation.  Because Congress met for only short periods in the early days of the Republic, the President was given the power to make appointments when Congress was not in session.  These have become known as recess appointments.
Recently, President Obama named a Consumer Affairs Director and three members of the National Labor Relations Board as “recess appointments.”  The problem with these “recess” appointments is that Congress was not in fact in recess, merely not conducting any business for a period of less than 72 hours.  The appointments were of people that were unlikely to have survived Senate review.  Members of the House would be astonished to know they were in “recess,” since they intended nothing of the kind.  And, neither house of Congress can adjourn or recess without the concurrence of the other.
The practical effect of President Obama’s interpretation of the recess appointment power is that for all intents and purposes, there is no need for any president to submit names to the Senate for advice and consent approval.  The president need merely wait until no active business is being transacted, perhaps just for a few minutes, then make a “recess appointment.”  Why would a president now bother with Senate approval, unless of course his or her nominee’s name was going to a Senate majority certain to confirm?
The Senate is an old and venerable institution.  Historically, the Senate would move to protect its prerogatives under the Constitution.  But, the Senate and its Democratic majority has been strangely silent.  Party loyalty and objectives apparently trump constitutional preservation.  The founders never envisioned a branch of government that would roll over and play dead when another branch rolled over its basic constitutional authority.  Why are we not hearing outrage from Democratic senators?
Between recess appointments, statutory interpretations, refusal to enforce laws the administration does not like, and the use of executive orders and agencies to accomplish policy objectives sans Congress, a new imperial presidential czardom  is coming to America.  Those who are creating this monster should realize that once the genie is out of the bottle, once the Constitution is cast aside, if power goes to the other party, they will have created a Frankenstein.  Then how they will scream about the sanctity of the Constitution.  Who will hear them?
“First they came for the communists, and I didn't speak out because I wasn't a communist.  Then they came for the trade unionists, and I didn't speak out because I wasn't a trade unionist.  Then they came for the Jews, and I didn't speak out because I wasn't a Jew.  Then they came for me and there was no one left to speak out for me.”  Pastor Martin Niemöller (1892–1984).
The Constitution is the great bulwark that keeps Americans litigious rather than belligerent.  The only great exception was the extremely bloody American Civil War.  Without the Constitution, there is no glue to hold us together.  It is a set of rules.  When we all play by it, we give up power when we lose elections and suffer the majority to rule.  But, when the rule book is thrown away, then the seeds of conflict are sown.
“And when the last law was down, and the Devil turned 'round on you, where would you hide, the laws all being flat? This country's planted thick with laws from coast to coast– man's laws, not God's– and if you cut them down —do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.”  Attributed to Sir Thomas More in “A Man for all Seasons.”
Rarely have those who would violate the Constitution and stretch it beyond reasonable interpretation been as active as they are now.  The President of the United States knew very well that he was on shaky ground with his recess appointments.  He did not even have the decency to wait to see if the current session of Congress would adjourn before the new session started.  Knowing very well that his appointments would not survive Senate review, he simply went around the U.S. Constitution.  It is not the first time.  Obamacare raised serious constitutional issues which are even now facing Supreme Court resolution.
The question now arises both for moderately enraged Republicans and for Democrats in the Senate, what will you do to protect the Constitution and the separation of powers?  If our legislators do nothing, they will consign us to an imperial presidency that will make the forebodings of twentieth century constitutional scholars look like play in a children’s sandbox.


Subscribe to The Constitution