All posts in Courts

Hinderaker’s solid piece on Roberts’ thinking

This is a long but good write up that is worth reading.  Hinderaker is no conservative radical but he is sound, relatively unemotional and clear-thinking.  I like his approach.


It Was Always a Tax

Yesterday I posted the rather pathetic video of White House Chief of Staff Jack Lew on Fox News Sunday, where Lew struggled to deny that the Obamacare mandate is a tax, and that the Supreme Court upheld it only as such. When confronted with footage of the administration’s lawyer telling the Court that the mandate is a tax, Lew acted as though he had never heard such a thing before.

In fact, the Democrats have always argued that the Obamacare mandate is a tax, and as such is constitutional. During the debates in Congress, they emphasized this point when the law’s constitutionality came under attack. Max Baucus, Chairman of the Senate Finance Committee, said:

Mr. President, our committee and the HELP Committee have given a lot of thought to the provisions in this legislation. We also gave a lot of thought to the constitutionality of the provisions—how they work and the interrelationship between the power of Congress and the States and what States will be doing, particularly under the commerce clause and the tax-and-spending powers of the Constitution.

It is very strongly our considered judgment, and that of many constitutional scholars who have looked at these provisions—and many articles have been put in the Record—that clearly these provisions are constitutional. The commerce clause is constitutional, the tax-and-spending clause, and the provisions clearly are constitutional.

Mr. President, the bill before us is clearly an appropriate exercise of the commerce clause. We further believe Congress has power to enact this legislation pursuant to the taxing and spending powers.

These were always the Democrats’ two arguments. It is worth noting that they were not arguing in the alternative; there is no inconsistency between the two theories. They always claimed that Obamacare was constitutionally justified by both the Commerce Clause and the Tax and Spend clause. Read more…

The Journal declares the apocalypse

From the annals of overreaction, here’s the Journal’s take on Roberts’ opinion.  Is the writer wrong?  Probably not, with respect to many of the details.  But I stand by my earlier post.  We live in a democracy, folks, like it or not.  Talk about a republic all you want but in those famous cliched words, it is what it is.

So read this.  Think about it.  Then do something if you care.

A Vast New Taxing Power

The Chief Justice’s ObamaCare ruling is far from the check on Congress of right-left myth.

The commentary on John Roberts’s solo walk into the Affordable Care Act wilderness is converging on a common theme: The Chief Justice is a genius. All of a sudden he is a chessmaster, a statesman, a Burkean minimalist, a battle-loser but war-winner, a Daniel Webster for our times.

Now that we’ve had more time to take in Chief Justice Roberts’s reasoning, we have a better summary: politician. In fact, his 5-4 ruling validating the constitutional arguments against purchase mandates and 5-4 ruling endorsing them as taxes is far more dangerous, and far more political, even than it first appeared last week.

Editorial board member Joe Rago on how Chief Justice John Roberts’s rewrite of ObamaCare weakens the Constitution’s federalist structure. Photo: Associated Press

This is a minority view. By right-left acclaim, at least among elites, the Chief Justice has engineered a Marbury v. Madison-like verdict that camouflages new limits on federal power as a reprieve for President Obama’s entitlement legacy and in a stroke enhanced the Supreme Court’s reputation—and his own. This purported “long game” appeals to conservatives who can console themselves with a moral victory, while the liberals who like to assail the Chief Justice as a radical foe of democracy can continue their tantrum.

It’s an elegant theory whose only flaw is that it is repudiated by Chief Justice Roberts’s own language and logic. His gambit substitutes one unconstitutional expansion of government power for another and rearranges the constitutional architecture of the U.S. political system. Read more…

Enough with the whining and hand-wringing. Let’s move on

I’m as interested in what the pundits and legal analysts have to say about the recent Obamacare ruling as the next guy. It was an absolutely fascinating piece of jurisprudence that people, and future courts, will be trying to untangle perhaps for generations to come.

But I’m tired of hearing the whining and moaning and the et tu’s from my conservative allies. First of all, I’ll say again, I don’t like the ruling any more than anyone else. I loathe Obamacare and the intrusions of the federal government in the private lives of others. I fear the collapse of our economy and free society under continued statist-inclined administrations and Congresses. I believe it will happen some day.

But on the whole we’ve been headed in that direction, with some interspersed periods of respite, since at least the 1930s. More government, more entitlements, more taxes, more regulations, fewer freedoms. Has the price been worth paying? That is part of the debate that is going on right now. Wake up and join it.

Let’s consider some facts about Obamacare:

1. During his 2008 campaign Obama was vehemently and openly opposed to the individual mandate.
2. Obama flipped and decided to support the individual mandate once he was safely in office. But he made clear it was definitely not a tax!
3. Obamacare made it to a vote because of an elected Republican.
4. The legislation was passed by a democratically elected Democrat-controlled Congress and signed into law by a democratically elected Democratic President.
5. At the moment the legislation passed very few people seriously thought that the Supreme Court would overturn the new law. (By the way as a rule conservative-minded folks should never hope for salvation from the courts!)
6. As time passed and the arguments were fleshed out, lo and behold, everyone, including the president, began to appreciate that maybe the mandate (and therefore the law itself) might not be constitutional. Oops.
7. All of a sudden even intrade was in on the action, setting the likelihood that the Supreme Court would overturn Obamacare at 70%.
8. And everyone was right, until Roberts pulled the rabbit out of his hat, rejecting Obama’s commerce-based arguments while making other arguments on his behalf that he wasn’t really wanting to make, thereby formally ushering us all into an era that our elected officials in their wisdom have crafted for us.
9. Wait a second! It is a tax!
10. No one was betrayed. It’s just that no one intervened. And we now have as a law a ridiculous and largely unread behemoth set of binding rules that will be funded by a penalty tax levied against people who can least afford to pay. And that doesn’t even touch the inevitable massive increase in costs and inefficiencies as the people who brought you the post office assume the reins of your health care. If it weren’t real it would all be pure comedy.

If you care, then let’s stop the whining and join the fight. November is going to be huge.

Update on Roberts’ genius

Clarification on earlier post: as would be expected, the four liberal justices, for whom Roberts wrote the majority opinion, opted out of Roberts’ tax rationale for the individual mandate based on their belief, with Pelosi, that Congress’ powers are essentially unlimited under the commerce clause.

That said, were it not for Roberts sleight of hand in finding this little tax gem, Obamacare would have failed in its entirety.

It really is a remarkable outcome, with Roberts writing the majority and Kennedy the dissenting opinion. I think it supports the notion that much of what’s left of American intellectual vigor resides in conservative thought.

Krauthammer echoes, and eloquently

Charles Krauthammer: Why Roberts did it

Charles Krauthammer
Thursday, Jun 28, 2012

It’s the judiciary’s Nixon-to-China: Chief Justice John Roberts joins the liberal wing of the Supreme Court and upholds the constitutionality of Obamacare. How? By pulling off one of the great constitutional finesses of all time. He managed to uphold the central conservative argument against Obamacare, while at the same time finding a narrow definitional dodge to uphold the law — and thus prevented the court from being seen as having overturned, presumably on political grounds, the signature legislation of this administration.

Why did he do it? Because he carries two identities. Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation and stature.

As a conservative, he is as appalled as his conservative colleagues by the administration’s central argument that Obamacare’s individual mandate is a proper exercise of its authority to regulate commerce.

That makes congressional power effectively unlimited. Mr. Jones is not a purchaser of health insurance. Mr. Jones has therefore manifestly not entered into any commerce. Yet Congress tells him he must buy health insurance — on the grounds that it is regulating commerce. If government can do that under the commerce clause, what can it not do?

“The Framers . . . gave Congress the power to regulate commerce, not to compel it,” writes Roberts. Otherwise you “undermine the principle that the Federal Government is a government of limited and enumerated powers.”

That’s Roberts, philosophical conservative. But he lives in uneasy coexistence with Roberts, custodian of the court, acutely aware that the judiciary’s arrogation of power has eroded the esteem in which it was once held. Most of this arrogation occurred under the liberal Warren and Burger courts, most egregiously with Roe v. Wade, which willfully struck down the duly passed abortion laws of 46 states. The result has been four decades of popular protest and resistance to an act of judicial arrogance that, as Justice Ruth Bader Ginsburg once said, “deferred stable settlement of the issue” by the normal electoral/legislative process.

More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5 to 4 decision split along ideological lines. It was seen by many (principally, of course, on the left) as a political act disguised as jurisprudence and designed to alter the course of the single most consequential political act of a democracy — the election of a president.

Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result — a 5 to 4 decision split along ideological lines that might be perceived as partisan and political.

National health care has been a liberal dream for a hundred years. It is clearly the most significant piece of social legislation in decades. Roberts’s concern was that the court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.

How to reconcile the two imperatives — one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.

Result? The law stands, thus obviating any charge that a partisan court overturned duly passed legislation. And yet at the same time the commerce clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the commerce clause fig leaf.

Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce clause contained, constitutional principle of enumerated powers reaffirmed.

That’s not how I would have ruled. I think the “mandate is merely a tax” argument is a dodge, and a flimsy one at that. (The “tax” is obviously punitive, regulatory and intended to compel.) Perhaps that’s not how Roberts would have ruled had he been just an associate justice and not the chief. But that’s how he did rule.

Obamacare is now essentially upheld. There’s only one way it can be overturned. The same way it was passed — elect a new president and a new Congress. That’s undoubtedly what Roberts is telling the nation: Your job, not mine. I won’t make it easy for you.

Some pre-Obamacare ruling comments regarding the left and right

The Left, the Right, and the Constitution
By Yuval Levin
June 27, 2012 2:15 P.M.

Whatever decision the Supreme Court announces on Obamacare tomorrow, the various liberal missives of anticipatory anxiety in recent days have already revealed a great deal about the Left’s attitude toward our constitutional system. What we’ve learned can hardly come as news to conservatives, but it has been put forward in an unusually clear and undiluted form, and so is worth some thought. A few reflections below the fold (as this is a day that seems to call for long posts).

The basic message of these left-leaning diatribes is pretty simple: A majority of the Court could only disagree with liberals about whether requiring all Americans to buy health insurance is beyond the proper bounds of the Congress’s power to regulate commerce if that majority acted in a purely political or partisan way; there is no room for disagreement regarding the actual interpretation of the actual Constitution.

E.J. Dionne says that if the Court overturns any part of Obamacare, “we will need a fearless conversation about how a conservative majority of the court has become a cog in a larger right-wing project to make progressive political and legislative victories impossible.” James Fallows says that “the Roberts majority is barreling ahead without regard for the norms, and it is taking the court’s legitimacy with it.” Yale law professor Akhil Amar thinks the proper outcome is so obvious that if even four justices disagree with him then the Court must be a sham—and he takes it personally. “If they decide this by 5-4,” he told Ezra Klein, “then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty.” Other examples abound this week.

It would be easy to criticize all this for its sheer unselfconscious lack of seriousness: These people are actually saying that any outcome except the one they want must be driven by an outcome-oriented political crusade. Only their view could result from an actual engagement with the question before the Court, and any other view could only be a function of corruption or of cynicism. It must be nice to be so enlightened.

More interesting, however, is what such an argument implies about one’s view of politics. Dionne, Fallows, Amar, and similar observers on the Left seek to draw a stark distinction between political and judicial thought, and it reveals their very low opinion of political ideas. They imply that there ought to be no connection between the most basic political divisions that define our public life—crudely encompassed in the Left/Right division—and ways of understanding the Constitution. This is a profound mistake, and a very telling one. As the Left often does, they underplay the substantive seriousness and significance of the Left/Right divide, presumably because they do not think of themselves as possessed of a particular worldview and believe they are merely objectively analyzing the obvious realities of the world around us. But there’s much more than they think to the Left/Right divide.

To put the matter much too broadly, the Left/Right divide begins in a disagreement about the nature of the liberal society; the Left and the Right are really two kinds of liberalism. I took up this subject in NR last fall, writing:

The difference between these two kinds of liberalism — constitutionalism grounded in humility about human nature and progressivism grounded in utopian expectations — is a crucial fault line of our politics, and has divided the friends of liberty since at least the French Revolution. It speaks to two kinds of views about just what liberal politics is.

One view, which has always been the less common one, holds that liberal institutions were the product of countless generations of political and cultural evolution in the West, which by the time of the Enlightenment, and especially in Britain, had begun to arrive at political forms that pointed toward some timeless principles in which our common life must be grounded, that accounted for the complexities of society, and that allowed for a workable balance between freedom and effective government given the constraints of human nature. Liberalism, in this view, involves the preservation and gradual improvement of those forms because they allow us both to grasp the proper principles of politics and to govern ourselves well.

The other, and more common, view argues that liberal institutions were the result of a discovery of new political principles in the Enlightenment — principles that pointed toward new ideals and institutions, and toward an ideal society. Liberalism, in this view, is the pursuit of that ideal society. Thus one view understands liberalism as an accomplishment to be preserved and enhanced, while another sees it as a discovery that points beyond the existing arrangements of society. One holds that the prudent forms of liberal institutions are what matter most, while the other holds that the utopian goals of liberal politics are paramount. One is conservative while the other is progressive.

The principles that the progressive form of liberalism thought it had discovered were much like those that more conservative liberals believed society had arrived at through long experience: principles of natural rights that define the proper ends and bounds of government. Thus for a time, progressive and conservative liberals in America — such as Thomas Jefferson and Thomas Paine on one hand and James Madison and Alexander Hamilton on the other — seemed to be advancing roughly the same general vision of government. But when those principles failed to yield the ideal society (and when industrialism seemed to put that ideal farther off than ever), the more progressive or radical liberals abandoned these principles in favor of their utopian ambitions. At that point, progressive and conservative American liberals parted ways — the former drawn to post-liberal philosophies of utopian ends (often translated from German) while the latter continued to defend the restraining mechanisms of classical-liberal institutions and the skeptical worldview that underlies them.

That division is evident in many of our most profound debates today, and especially in the debate between the Left and the Right about the Constitution.

It is not by coincidence that the Constitution is central to the argument. The constitution largely embodies in its forms and structures the more conservative form of American liberalism, and from the moment the progressive movement was born its adherents understood that the Constitution as traditionally understood must be their foremost target for reform. The first real skirmishes between conservatives and progressives (about a century ago) were explicitly about the Constitution, and many subsequent ones have been too.

It thus makes sense that the Left/Right divide should be embodied in a divide on the Court—a divide about serious questions of interpretation in light of a serious dispute about the purpose and character of our society, not a divide over “money, party, and party loyalty,” as Akhil Amar puts it. Many people who are liberals or conservatives are (at least implicitly) liberals or conservatives for a serious set of reasons, and that serious set of reasons also shapes how they understand and approach the Constitution.

There is a serious debate to be had between the partisans of these two sets of views, and it is a debate that often is had among Supreme Court justices in their written opinions. If we understand the contours of that debate, we can have some sense of where serious people on either side are likely to fall much of the time. After all, the liberals on the Supreme Court are at least as predictable (indeed more so, as is evident in the Obamacare speculation) as the conservatives. Dionne, Amar, and Fallows are too. And that makes sense: They hold certain views for reasons that we and they can understand, and they seek to apply them thoughtfully to particular instances.

This debate is indeed a political debate, in the best and highest sense. But that does not make it a cynical debate, or an illegitimate one. On the contrary. The apparent inability of many left-wing commentators to see that point tells us more than all their diatribes in recent days. Their anger about the very possibility that the Court might disagree with them about Obamacare suggests that they do not believe that there can be such a thing as a serious political debate—they take serious and political to be opposites. And it shows.

Thanks to National Review.

Mens rea and our president

In case you didn’t go to law school, mens rea is Latin for “guilty mind.” Without mens rea, generally speaking, you have no crime.

You may ask, what does this have to do with Barack Obama? A lot, in my opinion. Why? Because our current president graduated from what many consider the finest law school in our land. And he wasn’t just any student. I hear he was also Editor in Chief of the Harvard Law Review. This president at some point supposedly taught constitutional law as well.

So whatever one may think about his intelligence or intellectual aptitude, I find it impossible to believe that he did not master the basics at law school. But I’m still not talking about mens rea. I’m talking about understanding distinctions and the rational arguments underpinning them. This is a man that has no excuse when it comes to understanding what he is doing with respect to the law. He understands the legal implications of his oath of office; he understands the legal significance of his position as head of the executive branch of our federal government; and he knows all too well the conventional understanding of what his job is, from a constitutional perspective, as the President of the United States.

The same cannot be said for, you name them: Mitt Romney, George W. Bush, John McCain, Ronald Reagan, even John Kerry and Al Gore. At some level these men, if they had to, could fall back on the excuse that they were simply acting with their heart, that they were doing what they believed right in their own eyes and what someone had told them was in keeping with constitutional requirements and norms. In other words if someone accused them of breaching their constitutional duty they could always claim an absence of mens rea. Bill Clinton could not. And Barack Obama cannot. The difference there is that Clinton never asserted executive privilege the way Obama has become so cavalier at doing.

I cite two examples (there are so many more). One Fast and Furious and the refusal to turn over documents that Congress quite simply has the authority to see.

But even more problematic is Obama’s recent amnesty pronouncements on immigration. At least with respect to Fast and Furious there can be a good old fashioned argument over where a line is drawn. On the issue of illegal immigration the president has simply proclaimed that he does not intend to uphold the law.

First, remember the words from Article II of the Constitution and the 1884 presidential oath of office:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–”I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

And the oath:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

As Joseph Curl writes, the president even told a group of young Hispanics in 2011:

“America is a nation of laws, which means I, as the president, am obligated to enforce the law. I don’t have a choice about that. That’s part of my job.

“Congress passes the law. The executive branch’s job is to enforce and implement those laws,” he said. “There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as president.”

Yet in the past week the president announced he would no longer enforce a key aspect of federally-legislated immigration laws, namely, that if illegal immigrants were younger than 16 when they illegally entered the country they can receive a 2-year exemption from immigration. This discretionary policy from the Obama administration will be extended to any illegal immigrant up to the age of 30.

Now I’m not here to debate the merit or wisdom of this law. But I am saying that it is a LAW. It also happens to be a law that many people in this country, right or wrong, support and which neither the Supreme Court nor any US appellate court has ever declared unconstitutional. What it is not is something that the president has discretion to enforce or not.

The bottom line is the president needs Hispanic votes in large numbers in key states to win this election and promoting this illegal amnesty program for illegal immigrants is one way he thinks he can pull that off. Obviously Democrats won’t complain about the overreach and the Republicans who do will be labelled as (a) racists and (b) rank partisans. Again, it is another carefully calculated move to arrogate power for himself that he was not given by the Constitution.

One may argue that this has been going on since the beginning of the republic and there may be some partial truth to that statement. The difference here is the sheer brazenness of the move and the outright flouting of bright line established law. This is not something that is blurred at the margins.

But most damning of all is the president’s guilty mind. The mens rea with which he has seized the reigns of power, ignored the law and turned his back on one of the most fundamental obligations he has as President of the United States.

He knows what he has done and he is without excuse.

Washington Post columnist offers her thoughts on reconciling the public views on gay marriage and abortion rights

Jennifer Rubin of the Washington Post has some interesting comments on the shift that has occurred, and continues to occur, on a couple of the hot button issues of our time:

At first glance you might see conflicting trends, one favoring social conservatives and the other opposing this segment of the electorate. But this, I think, makes the mistake of ignoring the fundamental differences between these issues, although many people line up as pro-life/anti-gay marriage or pro-abortion/pro-gay marriage.

I have argued, and the poll seems to bear this out, that the movement toward acceptance of gay marriage is steady and inevitable. Claims for greater inclusion (be it desegregation or religious minorities serving in high office) usually prevail over time, as one might expect in a tolerant and diverse society. In the case of gay marriage, the increased openness of gays and the number of Americans aware of gay friends, family and colleagues have assisted in the acceptance of gay marriage. The move is generational, even within the conservative movement. And finally, because the Supreme Court did not monopolize the field, the issue was debated in the political realm where compromises (e.g. civil unions) and genuine soul-searching could take place.

Abortion is not a matter of bringing more Americans into the fold, of course, but of determining competing claims (the mother and the unborn child). In this case, the progress of medical technology, coupled with a political sense of being aggrieved that the courts had taken over the issue, fueled a vibrant pro-life movement that has changed hearts and minds. Arguably abortion will be harder to defend over time as the age of viability outside the womb gets reduced further and further.

Obama 2012: “Pro-Child Pro-Family Pro-Choice”

I ran into a nice old guy with hearing aids and a beard in the parking lot of the church where my son goes to his Mother’s Day Out program.  His Prius had broken down and he was waiting on a ride.  I noticed a bumper sticker on the back of his car and I couldn’t resist taking a picture.

I introduced myself to him and we shook hands and smiled.  I told him I hadn’t seen that bumper sticker and I hoped he didn’t mind if I took a picture of it.  He replied, “Oh, not at all.  It’s my favorite.”  I smiled and said, “Well I guess we’ll just have to agree to disagree.”  He smiled back and that was that.  The entire exchange was completely cordial.  I don’t know if he gave it a second thought but I’ve been thinking about it all day.

Now I live in a very blue city that will probably go 90% for Obama in November.  In fact he’s probably not left enough for the majority of voters in my town.  But the good thing from my vantage point is that my city is not representative of the country as a whole.  Still I found the bumper sticker interesting, especially in light of some of the recent information out there that shows that pro-choice Americans are at a record low.  Clearly this old man was in the 41% that are still pro-choice.

I also should note that the bumper sticker was in fact two bumper stickers and that the top one did not originate, at least not directly, from the Obama campaign.  But were it not for the 41% issue, it probably would have.  After all, the pro-choice position, despite its declining popularity, is central to the Obama social platform.

I have always taken issue with the term “pro-choice,” so I find it especially ridiculous when it’s married to “pro-family” and “pro-child.”  I understand that “pro-abortion,” or even “pro-abortion rights,” doesn’t have quite the beneficent glow of the other terms.  Certainly, “pro-right to destroy my living fetus” or “I’m for de-limbing the fetus,” while perhaps technically accurate, is completely impolite, way over the line, and frankly, gross.

By the way, I understand that the “pro-choice” folks disdain those who are opposed to inalienable abortion rights for calling their position “pro-life,” as if pro-choicers aren’t very fond of life themselves.  However, I do find it less Orwellian, especially in light of all the advances in medicine and our understanding of the early stages of human life that have occurred since 1973.

This issue of abortion rights is an emotional one.  It’s emotional for me as well.  Rationally speaking, I was converted once and for all on the issue after speaking with a woman in college who had run a bunch of abortion clinics in a major metropolitan area in the 1980s.  Her experience was horrifying and she struggled with massive guilt at what she saw, what she allowed to go on, and what she even encouraged young women to do.

My rational view on the matter was solidified emotionally after having spent more time in the NICU (neonatal intensive care unit) than anyone should have to with two of my kids.  I witnessed children being brought into this world at around 20 weeks–and surviving to live young healthy lives–something that was unthinkable in 1973.  It became so clear to me personally that trying to identify a point in time when life became a life worth protecting was absolutely arbitrary.  How can one say that a 20-week-old fetus was not a life in 1973 but is a life now in 2012?  Because medicine says so?

How can a mother have the right to abort her fetus, while at the same point in that fetus’ life, a person can be charged with manslaughter if the fetus dies in the course of an accident for which that person is responsible?  The fetus dying is a crime or not based solely on whether the mother wants the fetus to live?

The issue of abortion is probably the pre-eminent moral issue of our day and I do not presume to have answers to the myriad questions that arise from a federal directive that would undo Roe v Wade.  Living in a time where Roe v Wade isn’t law is almost unfathomable it’s been with us for so long.

But what I do know is that a facile “I’m pro-choice” doesn’t cut it anymore.  It might have in 1973.  It might have in 1993.  But in 2012 any thinking American knows that the knowledge we’ve picked up over the last 40 some odd years is a weight as well.  There is no room for knee jerk slogans on this issue anymore.

Another messianic ultimatum from President Obama: you’re either for me or you’re against me

President Obama is fond of spotting what he considers to be false choices.  Mostly these “false choices” are code for you’re too stupid to see the better way, but fortunately I, Barack Obama, am here to spell it out for you.  However, this higher plane doesn’t always suit the present cause, so Obama and the Democrats have identified at least one area where there is no false choice: Obamacare.  You are either for it or you are an uncaring, selfish, precedent-rejecting fool.

Interestingly, the Dems have put this either/or proposition to the one person who will have a large say in whether Obamacare survives–the Chief Justice of the Supreme Court, John Roberts.  From the Wall Street Journal:

You can tell the Supreme Court is getting closer to its historic ObamaCare ruling because the left is making one last attempt to intimidate the Justices. The latest effort includes taunting Chief Justice John Roberts that if the Court overturns any of the law, he’ll forever be defined as a partisan “activist.”

Senate Judiciary Chairman Pat Leahy recently took the extraordinary step of publicly lobbying the Chief Justice after oral argument but before its ruling. “I trust that he will be a Chief Justice for all of us and that he has a strong institutional sense of the proper role of the judicial branch,” the Democrat declared on the Senate floor. “The conservative activism of recent years has not been good for the Court.”He added that, “Given the ideological challenge to the Affordable Care Act and the extensive, supportive precedent, it would be extraordinary for the Supreme Court not to defer to Congress in this matter that so clearly affects interstate commerce.”

The elite liberal press has followed with pointed warnings that Mr. Roberts has a choice—either uphold ObamaCare, or be portrayed a radical who wants to repeal the New Deal and a century of precedent.

While I do not admire or even respect the chutzpah of these idealogues I do marvel at it.

CK’s latest: Our Divider in Chief

Charles Krauthammer is a must read.