More Controversial Recess Appointment by Obama

Especially Eric Holder's "friend", James Cole as Deputy Attorney General.

Obama once again shows his disdain for the openness, transparency and the need to have such appointees appropriately vetted. And his disdain for the voters who expressly rebuked these and other tactics of this administration in November's election.

http://voices.washingtonpost.com/right-turn/2010/12/so_much_for_bipartisanship_--.html

While all Presidents in recent history have used recess appointments for various reasons, there is much to dislike about Obama's specific appointments, along with the reason's he waited until the very end of the year and after the election to make them in the dark of night.

So much for bipartisanship -- a slew of recess appointments

By Jennifer Rubin

On Wednesday, Obama shed any pretense of bipartisanship in making six recess appointments. As were his previous recess appointments, this batch included two individuals whose records are so controversial that they could not obtain confirmation even with 59 Democratic senators. Also included was Stephen Ford, nominated as ambassador to Syria and stymied as a forceful rebuttal to Obama's failed Syrian engagement policy. Roger Pilon of the Cato Institute voiced objection to bypassing the Senate, arguing that: "there were credible reasons why the Senate refused to confirm the several nominees Obama has just now given recess appointments, reasons that warranted full and proper Senate confirmation hearings." He contends that "the striking feature here is that once again, as in the lame duck session, this Congress and the president managed to put off these important matters until after the November elections, which will result in this case in officers serving without the benefit of the legitimacy that comes from Senate confirmation." A senior adviser to a key Republican senator was more succinct: "It is an outrage."

The most egregious appointment is undoubtedly James Cole, installed as the deputy attorney general. There were good reasons why he could not secure Senate confirmation. The Web site Main Justice explained that Sen. Jeff Sessions (R.-Ala.), the ranking Republican on the Senate Judiciary Committee, has strenuously objected to Cole's controversial stance on the War on Terror, which Cole expressed in a 2002 op-ed. Cole wrote:

"[T]he attorney general is not a member of the military fighting a war -- he is a prosecutor fighting crime. For all the rhetoric about war, the Sept. 11 attacks were criminal acts of terrorism against a civilian population, much like the terrorist acts of Timothy McVeigh in blowing up the federal building in Oklahoma City, or of Omar Abdel-Rahman in the first effort to blow up the World Trade Center. The criminals responsible for these horrible acts were successfully tried and convicted under our criminal justice system, without the need for special procedures that altered traditional due process rights.

Our country has faced many forms of devastating crime, including the scourge of the drug trade, the reign of organized crime, and countless acts of rape, child abuse, and murder. The acts of Sept. 11 were horrible, but so are these other things."

Sessions and other Republicans also objected to Cole's work on behalf of AIG. Moreover, he represented a Saudi prince against 9-11 families as this report from the Examiner explains:

Cole represented Saudi Prince Naif bin Abdulaziz Al-Saud when insurance carriers and September 11 survivors sued him and others for financing terrorists. Treasury Department documents provided evidence of extensive financial support for Al-Qaeda and other extremist groups by members of the Saudi royal family and Prince Naif ran the Al Haramain Foundation, a Saudi charity that diverted funds to Al-Qaeda before and after September 11, 2001.

There is little wonder that Senate Democrats were indifferent to Republican efforts to block this nomination. House Homeland Security Chairman Peter King (R.-N.Y.) issued a statement deploring the recess appointment, declaring:

"I strongly oppose the recess appointment of James Cole to lead the national security team at the Department of Justice. The appointment indicates that the Obama Administration continues to try to implement its dangerous policies of treating Islamic terrorism as a criminal matter.

"After the American people, and the Democratic Congress, unequivocally rejected President Obama's plans to close Guantanamo and transfer admitted 9/11 mastermind Khalid Sheik Mohammed to the United States for trial in federal civilian court, I find it absolutely shocking that President Obama would appoint someone who has diminished the 9/11 terrorist attacks by comparing them to the drug trade and who believes that a civilian courtroom is the appropriate venue for 9/11 trials.

"This may be one of the worst appointments by President Obama during his presidency. The Justice Department needs a strong Deputy Attorney General who understands that our country remains at war with Islamic terrorists who continually plot deadly attacks against Americans, not a left-wing ideologue who places terrorists in the same categories as drug peddlers."

Similarly, Debra Burlingame, co-founder of Keep America Safe and the sister of a pilot slaughtered on 9-11, tells me via email, "Cole filed a brief on behalf of Prince Naif in which he derided the basis of the families' lawsuit as pure fantasy. One hopes that was Cole, the advocate, rather than representative of his personal point of view." She bluntly observes that "his remarks, less than one year after 9/11) comparing Wahabbi-inspired terrorism to the drug trade or lone nut McVeigh are, to me, disqualifying. He's dreadful."

A human rights activist well-versed in the Middle East tells me, "I've met Prince Naif. He's a tremendous human rights abuser, having trampled the rights of religious minorities in Saudi Arabia." His view is that "anyone who does represent such a guy should have no expectation of government service, particularly in a job involving counter-terrorism issues."

As for the recess appointment of Francis J. Ricciardone Jr. as ambassador to Turkey, multiple objections were raised at the time he was nominated stemming from his tenure as ambassador to Cairo.Josh Rogin reported in Foreign Policy:

The Bush administration exerted special efforts to promote democracy and human rights in Egypt, a longtime recipient of billions in military and economic aid, and a close U.S. partner on regional security matters. . . . Then Secretary of State Condoleezza Rice delivered a ringing 2005 address on democracy at the American University in Cairo, calling on Mubarak to embrace political reform.

Those efforts came crashing down months later, amid the widespread fraud and violence of Egypt's parliamentary elections. The opposition Muslim Brotherhood performed surprisingly well in the early rounds, prompting a harsh government crackdown that continues to this day. When Hamas shocked the world by winning the Palestinian elections the following January, the Bush administration appeared to lose its appetite for promoting Arab democracy altogether.

Former top National Security Council aide Elliott Abrams blames Ricciardone.

"Especially in 2005 and 2006, Secretary Rice and the Bush administration significantly increased American pressure for greater respect for human rights and progress toward democracy in Egypt. This of course meant pushing the Mubarak regime, arguing with it in private, and sometimes criticizing it in public. In all of this we in Washington found Ambassador Ricciardone to be without enthusiasm or energy," Abrams told The Cable.

Senator Sam Brownback (R.-Kansas) was a particularly vocal critic of the nomination.

Finally, although Ford is a respected diplomat, his recess appointment as ambassador to Syria drew a swift rebuke from the new House Foreign Affairs chairwoman Ileana Ros-Lehtinen. Her statement read in part:

"I am deeply disappointed that the President decided to make such a major concession to the Syrian regime. Using this Congressional recess to make an appointment that has far-reaching policy implications despite Congressional objections and concerns is regrettable. . . .Making underserved concessions to Syria tells the regime in Damascus that it can continue to pursue its dangerous agenda and not face any consequences from the U.S. That is the wrong message to be sending to a regime which continues to harm and threaten U.S. interests and those of such critical allies as Israel."

What, if anything, can be done by the imperious recess appointments of such controversial nominees? Todd Gaziano of the Heritage Foundation emails me, "The real threat (which Robert C. Byrd famously did once) is for the entire GOP caucus" to refuse to consent to any further nominees unless Obama agrees to refrain from issuing more recess appointments. Gaziano says that Republicans "could refuse to confirm another judge, diplomat, etc. until they extract their promise." There is also the power of oversight (to grill appointees on how they intend to perform their jobs) and of the bully pulpit (to publicize the records of these nominees). But the lesson for the GOP here may be to refrain from offering too many open hands to an administration only too eager to slap them and demonstrate disdain for a co-equal branch of government.

Guantanamo Bay - revisited

Obama's broken promises (to close it - which would be idiotic anyway) and muddled policy on it:

Krauthammer: On the future of Guantanamo in light of new recidivism numbers from the Director of National Intelligence: That is why there is not a single logical argument remaining. That the only answer here is to conclude that the Democrats used Gitmo as a weapon against the Bush administration to discredit it and say it was acting against American values. And they come to power and realize it’s the only answer. (A), the recidivism problem you talked about — you can’t release these people. Other countries are not going to take them. Secondly, Steve indicated that the president said it’s the number one recruiting tool, which is absurd. On the list of other [situations explicitly mentioned by al-Qaeda leaders over the last two years], Chechnya got 15. [Guantanamo got seven.] Is Chechnya twice as strong as a recruiting tool? Absurd. But lastly, al-Qaeda will always find a new recruiting tool. When the declaration of war was issued by al-Qaeda in 1998, the war against the Crusaders and the Jews, the number one reason [cited by al-Qaeda] was the occupation of the holy places in Saudi Arabia by the Americans, meaning the 50,000 American troops stationed there after the first Iraq war to protect Saudi Arabia against Saddam. Saddam is deposed in the second Iraq war and our troops leave, and al-Qaeda comes up with a different excuse. They will come up with a different excuse every day. Obama says Guantánamo is against our ideals. But he is in charge of Gitmo and says the prisoners are well-treated. No indication of torture. There is no implication that there is anything that the Obama administration would do other than what the Bush administration did — because Obama wants indefinite detention [for hard-core detainees] in Gitmo or elsewhere. It doesn’t matter. If it [indefinite detention] is against our ideals, it would be against our ideals in Gitmo or Illinois. So there is nothing left of this. It’s time that Obama admitted it. All he had to do is say: It [closing Gitmo] is mistake, it’s not achievable, and stop the nonsense.

ObamaCare updates: Death Panels revisited

Krauthammer On the revelation that the Obama administration has issued a rule giving Medicare payments to doctors who provide end-of-life counseling:

Well, I think what’s scandalous is that essentially the same idea was encompassed in a provision in the original law, in the original bill. I think it was article 1233, which was passed in the House and rejected in the Senate explicitly because of the uproar that was aroused by it. …

To then enact it through Medicare, through an administrative regulation, unilaterally, when the Congress had looked at it and rejected it, I think is [an] incredible example of administration arrogance and a way of going around what was clearly expressed as the will of the people. I think this is the kind of thing — exactly the kind of thing — you want to bring up in hearings so people will know what’s going on, [as] they may not have heard about it.

Death panels resurrected by Obama Administration

Death panels, one of the most controversial aspects of the bill known as 'Obamacare' will go into effect January 1st, despite having been removed during Congressional debate earlier this year.

Sarah Palin first coined the term 'death panels' in discussing one of the most controversial aspects of the proposed 'Obama care' legislation back in August 2009. The basic concept of the so-called 'death panel' in the original legislation came from the following reasoning: the bill included funding through Medicare for doctors consulting with patients on options for end-of-life care long before they were ever sick. Similar to a living will, this results in an 'advanced directive' in the event that they become too incapacitated to make their own medical decisions. Since 'Obamacare' introduced unprecedented federal oversight of the health-care industry, including amassing data on the cost-effectiveness of medical treatments, opponents of the legislation feared that doctors would have a financial incentive to reduce cost and thereby discourage patients accessing care.

There has been much debate over the phrase 'death panel'. For instance, third-party group Politifact.comgave the phrase their 'lie of the year' award. That said, no one on either side of the issue can dispute the fact that Palin's comment galvanized opposition to the legislation, especially the proposed 'end of life' counseling. The controversy became so heated that in order to ensure passage of the legislation, those sections were removed from the final bill.

According to a report by the New York Times, however, the Obama Administration is set to enact the exact type of counseling removed from the legislation. A newMedicare regulation, set to go into effect January 1st, "will pay doctors who advise patients on options for end-of-life care, which may include advance directives to forgo aggressive life-sustaining treatment." According to the article, including interpretations offered by many third-parties quoted in the article, the new regulation is more or less identical to the highly controversial language removed from the Congressional bill.

Given the original controversy, this is clearly a controversial decision. Of even further controversy, however, is that fact that the White House is essentially side-stepping an act of Congress. Debate over the bill clearly indicated that this language would have to be removed, yet regulations formed around its implementation have de facto added this into law.

Nor will the issue go unnoticed by the larger public, despite the distractions of the holiday season. The Times featured this on page 1 of the Sunday edition, having previously appeared on the website on Christmas Day. The headline "Obama Returns to End-of-Life Plan That Caused Stir" comes off as somewhat innocuous-sounding, but the issue was the lead topic on the prominent conservative-leaning Rush Limbaugh Show by today's substitute host Mark Belling. Being featured in two such prominent media outlets is sure to bring the issue attention.

HULIQ will continue to follow the issue to see if it develops into the same sort of controversy it did during the original debate, especially what the reaction from Congress will be.

http://www.blogger.com/post-create.g?blogID=8004931906890597215

Those ‘Death Panels’? Bush’s Fault

By Doug Powers • December 27, 2010 04:22 PM

**Written by Doug Powers

There was probably a five-hour meeting at the White House on how to spin this, which culminated in somebody throwing his hands in the air and saying “Let’s just do what we always do and blame Bush — everybody okay with that? Good.”

From The Hill:

The Obama administration is trying to quiet talk about so-called “death panels” after The New York Times reported Sunday that a new Medicare regulation includes incentives for end-of-life-care planning.

The Medicare policy will pay doctors for holding end-of-life-care discussions with patients, according to the Times. A similar provision was dropped from the new healthcare reform law after Republicans accused the administration of withholding care from the sick, elderly and disabled.

However, an administration spokesman said the regulation, which is less specific than the reform law’s draft language, is actually a continuation of a policy enacted under former President George W. Bush.

“The only thing new here is a regulation allowing the discussions … to happen in the context of the new annual wellness visit created by [healthcare reform],” Obama spokesman Reid Cherlin told The Wall Street Journal.

So if you have a problem with it, Sarah, call Dubya instead of the White House.

http://michellemalkin.com/2010/12/27/death-panels/

Rich Lowry: HERE COME THE DEATH PANELS

Bureaucrats trumping our democracy

The text of ObamaCare is dry and legalistic, except when it summons the maj esty of the King James Bible to intone imperiously, "the secretary shall . . . "

The secretary in question is the secretary of Health and Human Services, Kathleen Sebelius, who "shall" and "may" do all manner of things to complete the great unfinished canvas that is ObamaCare.

As George W. Bush might say, Sebelius is "the decider." In the discretion she's granted to remake American health care, she rivals Nancy Pelosi, Hillary Clinton and Oprah Winfrey as the most powerful woman in America.

The New York Times reported the other day that HHS has created a version of the "death panels," in Sarah Palin's famous coinage, that were stripped out of the law after an uproar in 2009. Why did we bother having that fight, with all its fiery accusations, if Kathleen Sebelius and her underlings could simply act at their discretion?

The first thing to know about death panels is that they aren't death panels. They are shorthand for consultations between doctors and patients to set up advanced directives governing decisions over end-of-life care. These consultations are innocent enough, even desirable. Unless you worry that ObamaCare's inevitable drift into price controls and rationing will twist them into something more sinister.

Read more: http://www.nypost.com/p/news/opinion/opedcolumnists/here_come_death_panels_rOgtOinGhJgRdmCYR9JtcK#ixzz19TGC46Tb

Obama's Foreign Policy in a nutshell

Not pretty ...

http://www.nypost.com/p/news/opinion/opedcolumnists/get_clue_barack_HcovFItLkcyaI5gELTGCwN

WSJ: True Lies About ObamaCare

http://online.wsj.com/article/SB10001424052748703886904576031630593433102.html?mod=WSJ_Opinion_LEADTop

PolitiFiction

True 'lies' about ObamaCare.

So the watchdog news outfit called PolitiFact has decided that its "lie of the year" is the phrase "a government takeover of health care." Ordinarily, lies need verbs and we'd leave the media criticism to others, but the White House has decided that PolitiFact's writ should be heard across the land and those words forever banished to describe ObamaCare.

"We have concluded it is inaccurate to call the plan a government takeover," the editors of PolitiFact announce portentously. "'Government takeover' conjures a European approach where the government owns the hospitals and the doctors are public employees," whereas ObamaCare "is, at its heart, a system that relies on private companies and the free market." PolitiFact makes it sound as if ObamaCare were drawn up by President Friedrich Hayek, with amendments from House Speaker Ayn Rand.

This purported debunking persuaded Stephanie Cutter, a special assistant to the President. If "opponents of reform haven't been shy about making claims that are at odds with the facts," she wrote on the White House blog, "one piece of misinformation always stood out: the bogus claim . . ." We'll spare you the rest.

PolitiFact's decree is part of a larger journalistic trend that seeks to recast all political debates as matters of lies, misinformation and "facts," rather than differences of world view or principles. PolitiFact wants to define for everyone else what qualifies as a "fact," though in political debates the facts are often legitimately in dispute.In fact—if we may use that term without PolitiFact's seal of approval—at the heart of ObamaCare is a vast expansion of federal control over how U.S. health care is financed, and thus delivered. The regulations that PolitiFact waves off are designed to convert insurers into government contractors in the business of fulfilling political demands, with enormous implications for the future of U.S. medicine. All citizens will be required to pay into this system, regardless of their individual needs or preferences. Sounds like a government takeover to us.

PolitiFact is run by the St. Petersburg Times and has marketed itself to other news organizations on the pretense of impartiality. Like other "fact checking" enterprises, its animating conceit is that opinions are what ideologues have, when in reality PolitiFact's curators also have political views and values that influence their judgments about facts and who is right in any debate.

In this case, they even claim that the government takeover slogan "played an important role in shaping public opinion about the health-care plan and was a significant factor in the Democrats' shellacking in the November elections." In other words, voters turned so strongly against Democrats because Republicans "lied," and not because of, oh, anything the Democrats did while they were running Congress. Is that a "fact" or a political judgment? Just asking.

As long as the press corps is nominating "lies of the year," ours goes to the formal legislative title of ObamaCare, the Patient Protection and Affordable Care Act. For a bill that in reality will raise health costs and reduce patient choice, the name recalls Mary McCarthy's famous line about every word being a lie, including "the" and "and."For instance, everyone can probably agree that Medicare's 75-year unfunded liability is somewhere around $30.8 trillion. But that's different from a qualitative judgment, such as the wisdom of a new health-care entitlement that was sold politically as a way to reduce entitlement spending. But anyway, let's try to parse PolitiFact's ObamaCare reasoning.

Evidently, it doesn't count as a government takeover unless the means of production are confiscated. "The government will not seize control of hospitals or nationalize doctors," the editors write, and while "it's true that the law does significantly increase government regulation of health insurers," they'll still be nominally private too.

"Net Neutrality" - Another Big Government Overreach ?

Some interesting commentary:

Charles Krauthammer:

On the FCC’s vote to implement net neutrality:

There is nothing in life that grows and thrives on its own that a liberal won’t come along and want to regulate and control. That is happening here.

I have not heard complaints about how free or fair or accessible the Internet is. In fact the FCC admits it’s trying to anticipate problems In the future. Government has a hard enough time trying to regulate what is happening now and they want to regulate what they think will happen in the future.

It’s particularly arrogant with the Internet which is evolving and changing rapidly as anything in the history of communications. I think that in and of itself is scary.

There is a procedural issue. They tried to do it in 2005 and were slapped down [by the courts] in 2008. Now the FCC is now trying to find a different basis of regulation. So instead of an information source it’s a telecom entity. Thus the FCC says it can regulate under the laws of the late ’30s regulating the phone company and its copper wires.

I think this is a hell of a stretch. It has no authority unless it is given a grant of authority from Congress. It ought to stay out of this.

Michelle Malkin:

http://michellemalkin.com/2010/12/22/internet-access-is-not-a-civil-right/

Michelle Malkin
Creators Syndicate
Copyright 2010

When bureaucrats talk about increasing your “access” to X, Y, or Z, what they’re really talking about is increasing their control over your lives exponentially. As it is with the government health care takeover, so it is with the newly-approved government plan to “increase” Internet “access.” Call it Webcare.

By a vote of 3-2, the Federal Communications Commission on Tuesday adopted a controversial scheme to ensure “net neutrality” by turning unaccountable Democrat appointees into meddling online traffic cops. The panel will devise convoluted rules governing Internet service providers, bandwidth use, content, prices, and even disclosure details on Internet speeds. The “neutrality” is brazenly undermined by preferential treatment toward wireless broadband networks. Moreover, the FCC’s scheme is widely opposed by Congress – and has already been rejected once in the courts. Demonized industry critics have warned that the regulations will stifle innovation and result in less access, not more.

Sound familiar?

The parallels with health care are striking. The architects of Obamacare promised to provide Americans more access to health insurance – and cast their agenda as a fundamental universal entitlement. In fact, it was a pretext for creating a gargantuan federal bureaucracy with the power to tax, redistribute, and regulate
the private health insurance market to death – and replace it with a centrally-planned government system overseen by politically-driven code enforcers dictating everything from annual coverage limits, to administrative expenditures, to the make-up of the medical workforce. The costly, onerous, and selectively-applied law has resulted in less access, not more.

Undaunted promoters of Obama FCC chairman Julius Genachowski’s “open Internet” plan to expand regulatory authority over the Internet have couched their online power grab in the rhetoric of civil rights. On Monday, FCC Commissioner Michael Copps proclaimed: “Universal access to broadband needs to be seen as a civil right…[though] not many people have talked about it that way.” Opposing the government Internet takeover blueprint, in other words, is tantamount to supporting segregation. Cunning propaganda, that.

“Broadband is becoming a basic necessity,” civil rights activist Benjamin Hooks added. And earlier this month, fellow FCC panelist Mignon Clyburn, daughter of Congressional Black Caucus leader and Number Three House Democrat James Clyburn of South Carolina, declared that free (read: taxpayer-subsidized) access to the Internet is not only a civil right for every “nappy-headed child” in America, but essential to their self-esteem. Every minority child, she said, “deserves to be not only connected, but to be proud of who he or she is.”

Calling them “nappy-headed” is a rather questionable way of boosting their pride, but never mind that.

Face it: A high-speed connection is no more an essential civil right than 3G cell phone service or a Netflix account. Increasing competition and restoring academic excellence in abysmal public schools is far more of an imperative to minority children than handing them iPads. Once again, Democrats are using children as human shields who provide useful cover for not-so-noble political goals.

The “net neutrality” mob – funded by billionaire George Soros and other left-wing think tanks and non-profits — has openly advertised its radical, speech-squelching agenda to crusade for “media justice.” Social justice is the redistribution of wealth and economic “rights.” Media justice is the redistribution of speech and First Amendment rights. The meetings of the universal broadband set are littered with Marxist-tinged rants about “disenfranchisement” and “empowerment.” They’ve targeted conservative opponents on talk radio, cable TV, and on the web as purveyors of “hate” who need to be managed or censored. Democrat FCC panelists’ have dutifully echoed their concerns about concentration of corporate media power. As the Ford Foundation-funded Media Justice Fund, which lobbied for universal broadband, put it: This is a movement “grounded in the belief that social and economic justice will not be realized without the equitable redistribution and control of media and communication technologies.”

For progressives who cloak their ambitions in the mantle of “fairness,” it’s all about control. It’s always about control.

John Fund @ WSJ

http://online.wsj.com/article/SB10001424052748703886904576031512110086694.html?mod=rss_opinion_main

START Treaty - Senate Failing to do its job

A special "Boo" to the Republican Senators who are caving to Obama admin on this. http://www.nationalreview.com/corner/255783/corkers-case-start-convincing-letter-my-mother-andrew-c-mccarthy Corker’s Case for START: As Convincing as ‘A Letter from My Mother’ December 21, 2010 3:11 P.M. By Andrew C. McCarthy Patting himself and his fellow Senate Republicans on the back for selling out on President Obama’s New START treaty, Bob Corker absurdly claims that all is well because — despite treaty terms that patently disserve our national security — senators have held debates, and because he and Sen. Richard Lugar have drafted a swell “resolution of ratification” that purportedly addresses New START’s serial flaws. Meantime, an unidentified John McCain admirer tells Rich the crafty ol’ Maverick deserves kudos for pressuring Obama into writing a letter talking up missile defense. Whoopee! Don’t you feel better about the GOP now? This is the most craven sort of nonsense. These senators are trying to rationalize their inexcusable approval of a bad treaty they lack the backbone to vote down. Holding debates?It’s a commonplace to mock the U.N. General Assembly as a “debating society” because the term connotes how inconsequential its exertions are. As for the vaunted resolution of ratification, I defer to John Bolton and John Yoo. Writing in the New York Times last month, they explained that the Obama administration hoped to sell its “dangerous” bargain by diverting attention from the treaty itself. Attention would instead be focused on the ratification resolution, which they predicted would be loaded up with “a package of paper promises” — variously called “conditions,” “understandings” and “declarations” — that would purport to address concerns about missile defense, the condition of our nuclear arsenal, treaty limitations on conventional weapons, etc. Ambassador Bolton and Professor Yoo continued: Senators cannot take these warranties seriously — they are not a part of the text of the treaty itself. As Eugene Rostow, a former under secretary of state, put it, such reservations and understandings have “the same legal effect as a letter from my mother.” They are mere policy statements that attempt to influence future treaty interpretation. They do not have the force of law; they do not bind the president or future Congresses. The Constitution’s supremacy clause makes the treaty’s text the “law of the land.” Instead, Bolton and Yoo asserted, “[t]o prevent New Start from gravely impairing America’s nuclear capacity, the Senate must ignore the resolution of ratification and demand changes to the treaty itself.” This is exactly the duty from which Senate Republicans are abdicating. The ratification resolution is nothing. The presidential letter Sen. McCain is said to have extracted is less than nothing: it lacks even the patina of a legislative act and is about as enforceable as a presidential commitment to close Gitmo or televise the government’s health-care deliberations on C-SPAN. The administration is wrong on national-security policy and politically weakened by the midterm thrashing. The treaty is awful, which is why there are so many things to address in resolutions and letters. If you can’t get Republican senators to do the right thing under these conditions, then when? One more related point. Based on my argument in yesterday’s column that the Senate may not unilaterally rewrite treaties or enact amendments that alter treaty terms, a friend suggests there is daylight between my position and that of Bolton and Yoo. There is none. Yes, Bolton and Yoo recount Senate action that has resulted in treaties being altered, but here’s what they say: When it approved the Jay Treaty in the 1790s, which resolved outstanding disputes with Britain, the Senate consented only on condition that President George Washington delete a specific provision on trade. Washington and Britain agreed to the amendment, and the treaty entered into force. In 1978, the Senate demanded changes to the text of the Panama Canal treaties as the price of its consent This is no different from what I am saying. The Senate in these cases did not claim the power to change treaty terms or enact resolutions that pretended to fix deep problems without altering treaty terms. To the contrary, senators told Presidents Washington and Carter that there would be no consent unless they went back to the countries in question and got the problematic terms changed. The Senate can pass amendments that amplify American understandings about a treaty; the Senate cannot unilaterally alter the core understandings in an agreement — that latter would render it no longer an agreement, and hence not a treaty. Thus did Messrs. Bolton and Yoo conclude: “While the Constitution gives the president the prime role in the treaty process, the Senate has the final say. If 34 senators reject a treaty, no president can override them.” Voting to reject is the Senate’s duty when confronted with a treaty that disserves the national interests. It is the current Senate’s dereliction on New START — a fact no resolution or presidential letter can paper over.

Next up for ObamaCare in Court: Florida

http://www.nationalreview.com/bench-memos/255518/summary-judgment-arguments-florida-obamacare-case-carrie-severino

Summary Judgment Arguments in the Florida Obamacare Case

December 17, 2010 2:28 P.M.

By Carrie Severino

Yesterday in Pensacola, Fla., Judge Roger Vinson heard oral arguments on the summary-judgments motions in the 20-state litigation challenging Obamacare. A few quick observations having heard the arguments and his questioning:

1. Judge Vinson seemed very amenable to the plaintiffs’ position on the Commerce Clause, recognizing the failure to purchase health care as inactivity rather than activity that is subject to regulation. He noted at one point that there is no case in which the Supreme Court has held that inactivity is activity. That goes quite a way toward victory on this point for the plaintiffs.
   
   Judge Vinson probed the DOJ lawyers as to what the logical stopping point would be of their theories, and did not, to my mind, get any satisfactory answer. Their argument seemed to boil down to “health care is unique and therefore this wouldn’t apply in other areas.” But when Judge Vinson asked how that market was different than the market for shoes or transportation, they simply retreated to their argument that, at least as a class, everyone is guaranteed to use health care, and this law does no more than regulate how to finance it.
   
2. Plaintiffs used about half of their argument time on their claim that the dramatic expansion of Medicare amounts to coercion and commandeering of the states. This is a claim that Judge Vinson telegraphed skepticism about in his opinion on the motion to dismiss, and he didn’t seem significantly more encouraging during these arguments. In particular, he seemed wary to decide the issue on summary judgment as the effect of the law on the states could be considered an issue of fact and not pure law.
   
3. Judge Vinson specifically asked the plaintiffs to discuss severability and the availability of injunctive relief, two issues that only would come into play if they win on at least one of their claims. This is a good sign for the plaintiffs. However, he also agreed with DOJ lawyers that deciding whether or not the law as a whole would have been passed absent the individual mandate was a highly speculative exercise, suggesting he would sever some provisions at least. Plaintiffs are arguing that the whole law stands or falls with the individual mandate, and DOJ has conceded that several important insurance regulations governing preexisting conditions and pricing of insurance would have to be stricken if the mandate is found unconstitutional — significantly more than was struck down with the mandate in the Virginia case decided Monday. That leaves a lot of the bill up in the air, including many provisions that seem more tangential to the law’s purpose and would likely be left to stand even without the mandate (which arguably would have provided their chief source of funding), and major insurance regulations and Medicaid changes that could go either way.
   
4. A couple memorable moments: First, Judge Vinson put the DOJ lawyer in a tough spot when he stated that, at times in his life, he hadn’t had health insurance. He did get health care during that time, but paid all his bills in full and therefore wasn’t the drag on the system that the government assumes all uninsured must be. Not something I would have wanted to hear were I in the lawyer’s shoes.
   
   Second, I found it amusing that the DOJ lawyer was concerned about the uninsured being unable to afford even “routine” medical care, like angioplasty. Angioplasty, apparently, is now routine. I guess the term “routine medical care” to me means something more like annual checkups, flu shots, mammograms, and the like, but perhaps times are changing.
   
   Judge Vinson didn’t give a time frame for deciding the case, but he did say he would have his decision out “as quickly as possible.” He handed down his decision on the motion to dismiss one month after arguments, but this time may take slightly longer, given the upcoming holidays. Opponents of Obamacare should be sanguine after these arguments, but regardless of the result, this case won’t ultimately be decided until the Supreme Court has its say. Still, another decision reaffirming constitutional limits on government would be a great way to start off 2011.

The Iraq War decision revisited

Why We Were Right to Take Out Saddam

December 13, 2010 2:00 P.M.

By Victor Davis Hanson

In a recent interview, Katie Couric asked Condoleezza Rice what were the reasons for removing Saddam Hussein if one were to take fear of weapons of mass destruction out of the argument. Rice reviewed the general pathologies of the Saddam regime, but did not cite the October 2002 joint congressional resolutions that listed over 20 writs justifying regime change, including Saddam’s bounties to terrorist bombers on the West Bank, genocide against the Kurds, attempts to kill George H. W. Bush, harboring of terrorists, and violation of the 1991 accords, the no-fly zones, and U.N. sanctions. So there were plenty of reasons, not counting fear of WMD, for Congress to have wanted to remove Saddam — and indeed a majority of Democratic senators, including Harry Reid, John Kerry, and Hillary Clinton, and sizable numbers of House Democrats voted for the resolutions. The administration erred in hyping one or two writs concerning WMD, and today the result is that we have completely forgotten the congressional authorizations in late 2002 and their rather long litany of Saddam’s transgressions — which had earlier led Bill Clinton to push through a regime-change authorization of his own (the Iraqi Liberation Act of 1998).