Rightwing Fecal Matter Alert: Obama Bows in Japan, World Ends

The rightwing has spewed smelly fecal matter before, but the latest is the most odoriferous in recent memory. Rightwing bloggers and other commentators are having a nervous breakdown because President Obama bowed when he met with Emperor Akihito of Japan.

The blog Hot Air -- which operates as a clearinghouse for rightwing fecal matter -- has unearthed a New York Times article from 1994, which supposedly "blasts" President Clinton for bowing before Akihito. The article, however, does not blast Clinton (or anyone else). Instead, it provides rather campy commentary regarding the uncertainty that United States presidents and their staff have faced when greeting royalty:

There was that curtsy, during the Reagan years, when Lenore Annenberg, herself the chief of protocol, forgot herself entirely and did a little dip to greet a visiting Prince Charles. That prompted a stern warning from Miss Manners against those who might mock the effort that "was once put into freeing Americans from the necessity of bending their knees." Soon afterward, when Nancy Reagan greeted Queen Elizabeth II behind closed doors, her press secretary acknowledged that Mrs. Reagan had bowed her head but insisted, "It was definitely not a curtsy."

The blog American Power keeps the stench going with an essay "Bowing Before Monarchs and Tyrants." Video footage of Obama greeting Akihito accompanies the article lunacy.

The blog's description of Akihito as a "monarch" or "tyrant" demonstrates the paucity of facts in contemporary conservative commentary. A real monarch (as opposed to a constitutional monarch) exercises absolute power and dominion in a country. Emperor Akihito, however, is merely a figurehead.

The Constitution of Japan gives executive power to the Cabinet and legislative authority to the Diet. The Constitution also creates a national judicial system. Furthermore, it states that "[t]he people have the inalienable right to choose their public officials and to dismiss them."

By contrast, the Constitution of Japan describes the Emperor as a "symbol." The Constitution also states that the "Emperor shall perform only such acts in matters of state as are provided for in this Constitution and he shall not have powers related to government" (italics added).

Even though Akihito is simply a symbol of state, American Power argues that Obama's bow shows that "the United States now willingly prostrates itself before the rest of the world." This statement is simply diarrhea. It also misuses terminology.

Finally, the conservative outrage in this area is laughable, given the fact that the bow is akin to a handshake. Applying conservative fecal logic, President Obama should not shake hands with the Emperor either -- which begs the question: Why should United States presidents meet with royalty? If bowing concedes power to "monarchs and tyrants," then meeting with them during a diplomatic trip does so as well. Flush.

Very Hot Air From "Hot Air" -- Regarding Healthcare Reform

Ed Morrissey of Hot Air has pumped out an essay defending the rightwing's largely unsuccessful effort to convince any reputable constitutional law scholar (on the right or left) that proposed healthcare reform would violate the Constitution. Morrissey's essay takes issue with my recent post that applauds Nancy Pelosi for dismissing a CNSNews reporter's question on the subject. Morrissey makes several arguments. I find none of them persuasive.

Conservatives Have Demanded "Absurdly Specific" Language Justifying Healthcare Reform
Morrissey says that "our argument has never been that Congress cannot pass laws, or that Congress cannot pass laws without some absurdly specific mention in the Constitution." This is disingenuous. On September 22, Hot Air posted a viral video (via CNSNews) that shows a high school "government" teacher pleading with Mark Warner for specific language in the Constitution authorizing the government to "run healthcare." Certainly, a citation to Article I, or even more specifically to the Commerce Clause or to the taxation and spending powers, would not have alleviated her anxiety. Nor would it have satisfied Hot Air and CNSNews.

Furthermore, the CNSNews article that served as the basis for the Hot Air piece ominously reported that Warner said "there is 'no place in the Constitution' that mentions health care. . . ." If conservatives are, as Morrissey claims, uninterested in absurdly specific text, then Warner's statement is not newsworthy. Clearly, the Constitution does not mention health care (or education, telephones, etc.). This silence, however, does not deprive Congress of any authority over the industry.

In addition, Morrissey himself has argued that unless the Constitution "covers" a power, then Congress must "butt out." He made this assertion in response to Representative Shea-Porter's rejection of a strict reading of the Constitution that would limit Congress to the exact wording of the text. If Morrissey is not demanding exact language regarding healthcare, then he should not have found Shea-Porter's argument worthy of discussion. Although Morrissey has been more flexible at times, he has (intentionally or unintentionally) pushed a method of constitutional interpretation that he now labels "absurd."

The Framers Did Not Know About Airplanes
Morrissey also takes issue with my argument that demanding specific text on a subject would nullify the government's authority to create the Air Force. Morrissey, of course, does not point to language in the Constitution that refers to the "Air Force" or even to airplanes. Instead, he cites to more generalized language empowering Congress to provide for the "common defence." This, however, is the exact same type of constitutional interpretation that should guide debates over the constitutionality of healthcare reform. Interstate commerce, taxation, spending, and "general welfare" come to mind as places to anchor healthcare reform. Conservatives, however, have demanded precise language from liberals, while embracing generalized provisions to justify policies they favor.

Furthermore, Morrissey completely ignores more difficult questions that the strict approach implicates. For example, he specifically evades the question of Medicare's constitutionality, and he is absolutely silent regarding federal bans on partial-birth abortion, crack cocaine, acts of terrorism and other issues my essay raises. I do not believe these laws necessarily fall outside of the scope of federal authority, but I have not approached the Constitution from the constrained perspective that conservatives have advanced.

The Tenth Amendment Does Not Make Healthcare Reform Unconstitutional
Finally, Morrissey's interpretation of the Tenth Amendment -- which other conservatives seem to share -- is also flawed. In a prior essay, Morrissey argues that:

The Constitution sets their power and circumscribes it rather clearly in Article I, Section 8 and Section 9 of the Constitution. The Tenth Amendment reserves all other powers to the states or to the people, underscoring the explicit limitation on Congressional power. . . .Therefore, when the Constitution does not “cover” a subject, it explicitly and expressly intends for Congress and the federal government to butt out.

The Tenth Amendment is a truism: every power that is not delegated to the federal government is retained by the states. The provision, however, does not tell us what is in fact delegated. Nor does it state that the text of Article I expressly "covers" the entirety of permissible federal authority.

Morrissey is stuck in the era of the repudiated and supplanted Articles of Confederation. Anyone who has read McCulloch v. Maryland should know that the Court rejected the notion that unless the power was "expressly" mentioned in Article I, then Congress lacked authority; this was the law under the Articles of Confederation. Under the Constitution, Congress (as Morrissey seems to concede) has implied powers. Accordingly, the Tenth Amendment does not provide any useful information about this subject.

More Hot Air from "Hot Air": Implies Healthcare Reform Unconstitutional

No serious Constitutional Law scholar has argued that healthcare reform (in any of the currently proposed formats) is unconstitutional. Some conservative commentators, however, have tried unsuccessfully to float the argument.

Yes, Virginia, Healthcare Reform Is Constitutional
On August 22, David Rivkin Jr. and Lee A. Casey, two rightwing attorneys, argued in the Washington Post, that healthcare reform violated the Constitution. Their argument, however, only captured the hearts of conservatives desperate to find a good good reason to oppose healing the sick.

Today, the conservative blog Hot Air tried to revive the argument by posting footage of Senator Mark Warner explaining why healthcare reform is constitutional. Although the video link no longer works, the summary by Hot Air states that Warner cites to the Commerce Power as authority for healthcare reform. This is exactly correct, but I would add the Taxation and Spending Powers as well. I have thoroughly analyzed this issue in a prior blog post (and in the comments section to that post). Even conservative Constitutional Law professors have made similar arguments (see the post I linked).

Absurdity of the Question
It is absolutely absurd to ask whether the constitution specifically or explicitly allows Congress to regulate or reform healthcare. The Constitution speaks broadly and ambiguously. Only a few provisions are specific and beyond dispute (like the age requirement for presidents and members of Congress).

The Constitution does not specifically or explicitly authorize the creation of the Air Force or Medicare, nor does it discuss the federal prosecution of crack cocaine possession. And the "Framers" certainly did not specifically contemplate airplanes, prescription drug and hospital plans for seniors, or crack cocaine because these things were not realities when they wrote the Constitution.

If conservatives only believe Congress can regulate things that are explicitly mentioned in the actual text of the Constitution, then they should essentially advocate the abolition of the federal government. At a minimum, they should seek the immediate repeal of laws banning partial-birth abortion and kidnapping; the Constitution does not mention children or abortion.

Also, as many students of high school and college civics classes know, Article I of the Constitution contains the "necessary and proper" clause, which endows Congress with unenumerated powers that are needed to carry out its expressly delegated powers. In the very first case interpreting this provision (McCulloch v. Maryland), the Supreme Court rejected the narrow interpretation offered by anti-federalists.

Many of today's conservatives pretend that the Necessary and Proper Clause does not exist or that courts can only interpret it conservatively. Nothing in the history of the clause or the Court's interpretation of it compels an exclusively narrow interpretation.

Finally, I find it ironic that the GOP's so-called Bill of Rights for Seniors pretends to offer protection for Medicare, while conservatives have repeatedly asserted that healthcare reform violates the Constitution. If Congress lacks the power to pass healthcare reform, then it probably lacks the power to create Medicare, which conservatives claim to support. The inconsistencies are absolutely dizzying.

The Blog "Hot Air" Stays True to Its Name With Article Suggesting Supreme Court Intentionally Delaying Ruling in Ricci

The blog "Hot Air" has stayed true to its name by publishing an article which suggests that some justices on the Supreme Court are intentionally delaying a ruling in Ricci v. DeStafano in order to secure the confirmation of Sonia Sotomayor. Although fellow law professor blogger William Jacobson, whose blog (Legal Insurrection) I admire and include in my blog roll, originally published the essay, I find the conclusion sketchy and unsupportable.

Jacobson's argument responds to an article in the Blog of the Legal Times, which analyzes a recent appearance by Justice Ginsburg on CSPAN. During her appearance on CSPAN, Ginsburg noted that the Court had rendered a substantial amount of 5-4 rulings this year and that it would soon issue additional split decisions.

Ginsburg also stated that "one can safely predict [that Ricci], will be among the last [decisions] to come out before the term ends." Ginsburg also praised Sotomayor, stating that "I was cheered by" her nomination and that "I look forward to a new colleague well-equipped to handle the challenges our work presents." Although Supreme Court justices rarely comment on the confirmation process, they have done so in the past. As BLT reports, Justice Stevens and Justice White spoke favorably regarding Judge Bork during his highly controversial and ultimately unsuccessful confirmation bid.

Ginsburg's comments, however, lead Jacobson to worry about the motivation of the justices:

It may be that Ricci will be one of the last decisions issued for entirely legitimate reasons, and Ginsburg merely was stating a fact which shows no motive. But Ginsburg’s endorsement of Sotomayor, combined with Ginsburg’s statements as to the timing of Ricci, creates the unfortunate appearance of one or more of the current Justices playing politics with the timing of the Ricci decision.

I have suspected that one of the reasons the Obama administration wants to rush the Sotomayor confirmation hearings through in mid-July is to avoid the serious political damage to Sotomayor’s confirmation of a reversal on Ricci. Ginsburg’s statements
seem to support this wisdom, from the Obama administration’s point of view, since the Ricci decision appears to be headed for release after mid-July.

Although I will concede that Ginsburg's comments could lead to the concerns held by Jacobson, for the following reasons, I believe that his worries are unwarranted. First, the Ricci decision will probably appear among the last cases this term because it, like the Voting Rights Act case, presents challenging legal issues that will deeply divide the Court. Although much of the public discourse surrounding Ricci portrays it as a slam-dunk case wrongly decided by the Second Circuit panel (that included Sotomayor), the law is, in fact, much more complicated than this public discourse acknowledges.

It is not uncommon to find difficult and divisive cases among the final entries by the Court. Grutter v. Bollinger and Gratz v. Bollinger, two closely divided and important affirmative action cases, were decided on June 23, 2003. Last year's 5-4 ruling in the Second Amendment case Heller v. District of Columbia was issued on June 26. And the Court released its 5-4 ruling upholding the Boy Scouts of America's discriminatory policy prohibiting membership by gays and lesbians on June 28, 2000. This is not a scientific study. Instead, I am simply attempting to demonstrate that in my experience, it is not uncommon for the Court to decide divisive and important cases near the end of the June. Accordingly, the fact that Ricci presents complicated legal and factual questions that divide the Court could explain why the Court will decide it near the end of the current term.

Jacobson believes that the Court could delay issuing a ruling in Ricci until late July. But if the Court goes on recess at the end of June, as is customary, then the Ricci decision will probably emerge in the next two weeks -- not in July.

Furthermore, I doubt that the Supreme Court justices have attached as much importance to Ricci as Sotomayor's political opponents. First, because Sotomayor has voted on thousands of cases, isolating one and trying to make it a critical element in an evaluation of her fitness for the bench seems arbitrary and irrational. Also, because the law in this area is close -- as demonstrated by the divided en banc decision -- the effort to use this case in order to defeat Sotomayor's nomination is pretty weak.

Finally, if, as Ginsburg suggests, this case is among a slew of forthcoming 5-4 rulings, then 4 Supreme Court justices, 7 Second Circuit judges (including Sotomayor), and one Federal District Judge will have all voted against Ricci and in favor of the City of New Haven. This breakdown does not support conservative arguments that cite to Ricci (and its potential reversal) in order to portray Sotomayor as a wayward judge who is incompetent and unable to apply the law correctly. Instead, the number of judges who could potentially agree with Sotomayor provides further evidence that her opponents' citation to Ricci (and its possible reversal) is merely a game of politics -- rather than an honest discussion of the legal issues the case presents.

PS: Although I doubt that the Supreme Court is playing confirmation politics, I believe that the Democrats sought a mid-July date for the start of Sotomayor's confirmation hearings because that would allow two weeks for any fallout over Ricci to subside.