I Don’t Even Play One on T.V.

Once again, gentle reader of my blog, (all 1 of you, you know who you are ;), we cite the excellent writing at American Thinker.  This morning’s piece is on the dusty-old, but, to civics-geeks, exceedingly exciting matter of the Origination Clause, as it specifically relates to Obamacare, and more specifically, a SCOTUS* lawsuit to kill Obamacare.  I am not a lawyer, nor do I play one on t.v., but I need help with this  American Thinker piece’s anti-Obamacare legal argument because it reads to me like a pro-Obamacare legal argument, save the last paragraph.

By way of a quick review, since I presume you have a life and haven’t followed the minute particulars like those of us who haven’t seen daylight since Obama showed up, Obamacare was born by (then) Senate Majority Leader Harry Reid gutting a piece of  revenue-raising House legislation he found languishing in the bottom of a desk drawer, and inserting Obamacare.  Why did Dirty Harry do this?  Because only the House can tax the people and Harry needed a piece of paper with a big “H” on it to morph it into the biggest tax & redistribution legislation in the history of human-kind, Obamacare.   The Senate is allowed, of course, to “amend” House legislation, so Harry decided “amend” meant ripping absolutely e-v-e-r-y-t-h-i-n-g out of that piece of paper except the “H” and the bill number.  No… Really.  I mean it.  Literally.  That’s “amending” a piece of legislation in the new America post-January 20, 2009.  The bill could have been on curtain rods, but instead of amending it to include curtains, he “amended” it to include fish-bait.  Does that sound like an “amendment” to you?  An normal person?  No.  Of course not.

Now, I know that’s a quaint, and antiquated matter these days, that pesky Constitution, but Harry’s been around a long time and knows he needs to cross his t’s and dot his i’s down there on the Hill, being without the expansive powers of the magic “pen and a phone” of his consigliere at 1600 Penn.  So he figured as long as the origination bill had an “H-0000” on it, who the hell would notice, right?  I mean… Really?  It’s not like we have an adversarial press, and Obama-voters were watching “American Idol” not CSPAN.

Well, unhappily for Obama, not everyone was smitten with the Black Jesus, nor was everyone was watching “American Idol,”  including the author of this piece who says he is trying to help anti-Obamacare people by dint of his research, in the form of a scholarly article he summarizes for the masses at American Thinker, which I include in full below. But dang it all if it didn’t seem to do the opposite to me!  I read the entire thing, twice, and the ENTIRE article – SAVE the LAST paragraph – tells me how the author’s reading of the past HELPS PRO-Obamacare people – then WHAM! In the last paragraph, based on what I regard as an argument UNSUPPORTED BY EVERY SINGLE PARAGRAPH PRECEDING IT, says “NO WORRIES! It’s all good! SCOTUS will kill O’care because… non-‘germane’ amendments.”

Can some smart reader here help me? Because to a TOTAL non-lawyer it TRULY seems to me the last paragraph stands unsupported by all the previous paragraphs… Am I wrong here?

*SCOTUS = Supreme Court of the United States

Obamacare’s Constitutionality and the Origination Clause: New Evidence

April 27, 2015

One of the constitutional disputes triggered by the Affordable Care Act (Obamacare) is whether by substituting new material for the original House-passed bill (H.R. 3590), the Senate exceeded its constitutional power to amend the original measure. This, in turn, has provoked a debate over whether the Founders considered complete substitutes to be valid amendments.

A recently-republished piece of evidence suggests that they did. The Constitution’s Origination Clause requires that “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” Because the final version of Obamacare imposed a variety of taxes, it unquestionably was a “Bill for raising Revenue.”

Obamacare’s taxes, appropriations, and health-care regulations did not exist in the House-passed version of H.R. 3590. That incarnation of the bill was only a few pages long and was limited to making minor adjustments to the Internal Revenue Code irrelevant to health care. Under the guise of amendment, the Senate gutted the original language and substituted over 2000 pages of Obamacare.

Some writers argue that complete substitutions were not considered valid amendments during the Founding Era, while others contend that they were. Last year, I undertook a wide-ranging investigation into the subject that will be published within the next few weeks by the Harvard Journal of Law and Public PolicyThe article is summarized at length here.

I found that complete substitutions may have been unknown in the British Parliament, one source of the Constitution’s House-origination rule. I also found, however, that they were occasionally used in several states between Independence and the time the Constitution was ratified, and that they were considered valid amendments in those states.

This year, the Wisconsin Historical Society issued two new volumes of the magisterial Documentary History of the Ratification of the Constitution. Those volumes cover the debate over the Constitution waged in Maryland from 1787 through the end of 1788.

The first of the volumes reprints a pamphlet written in favor of the Constitution by “Aristides,” the pen name of jurist Alexander Contee Hanson. Hanson was a respected figure in Maryland, and his pamphlet was read widely both in that state and in Virginia. At one point he addressed the question of whether the Constitutional Convention exceeded its authority on the (substantially false) assumption that the delegates’ commissions had been limited to proposing amendments to the Articles of Confederation. Hanson argued that proposing a substitute was a recognized form of “amendment:”

Amendment, in parliamentary language, means either addition, or diminution, or striking out the whole, and substituting something in its room.

Hanson’s assertion is particularly relevant to the Constitution’s original meaning because his own state legislature is not among those offering contemporaneous evidence of complete substitutions. Hanson was reflecting, in other words, an understanding that extended beyond his own state’s boundaries.

Unfortunately for advocates of Obamacare, the validity of complete substitutions as “Amendments” does not resolve the issue of constitutionality. During the Founding Era, even complete substitutes had to be connected to the subject matter of the original bill — or, in modern language, “germane” to the original. Otherwise, they were new bills, not valid amendments.

For reasons documented in my article, H.R. 3590 as passed by the House qualified constitutionally as a “bill for raising Revenue” (even though it was revenue-neutral) because it amended the tax code. Under Founding-Era rules all the Senate’s revenue changes were germane to the original, and therefore valid. However, the Senate-added appropriations and regulations were not germane to the subject of revenue. By including them, the Senate exceeded its authority to amend a “bill for raising Revenue. This means that by the Founders understanding of the Origination Clause, those additions were unconstitutional and void.

Rob Natelson is Senior Fellow in Constitutional Jurisprudence, Independence Institute & Montana Policy Institute, and Professor of Law (ret.), The University of Montana

Filibuster Revenge Without Losing Your Soul

I’ve embarrassed this nice young man before (Michael Cannon of the Cato Institute. You can read a quick, entertaining bio of him here) w/my middle-aged housewife love for him (I just think he’s wicked smart and kinda cute and we had a nice Twitter exchange a while back when I relayed those feelings to him.) and though I tweeted this article out I wanted to be sure to feature it here for the 1 or 2 people who actually visit my blog on a semi-regular, hung-over, ‘damn what did I click’ basis. Mr. Cannon first came to my attention when I saw him testifying on the Hill a few years back and the guy is sharp and fearless and more importantly, there appears to be a deep river of morality running as undercurrent to his political philosophy. Meaning, ‘he hasn’t lost his soul’ as Glenn Beck might say, which is really another way of saying he knows the bedrock upon which we were founded, has read The Federalist, knows the Constitution backwards and forwards, and thinks it’s a pretty nifty document. In other words, my kind of of guy!

So as we approach the 114th Congress in January, the new Senate will have a choice: undo the “nuclear option” Harry Reid undertook w/the filibuster rules, or keep them and shove them down their throats? Revenge is tempting, but Mr. Cannon has an excellent way to… well… stick it to the Democrats, but still leave Revenge to the Lord, where it belongs. (Even for a fallen woman like me, a pagan, I recognize the wisdom of leaving capital “R” revenge to a hand larger than man’s. It is not mine. Or “ours.” Put another way, I firmly believe in having my patience rewarded by a city bus rolling over the bastards; keeps my hands clean and still gives me a warm feeling inside. You know… ;))

It’s a bit of a read, but well worth it. Enjoy.

If Dems Can Nuke Filibuster For Judges, GOP Can Nuke It For ObamaCare (And Still Save Senate)

Republicans won an impressive number of victories last night, including a larger and more conservative House majority and enough wins to give the GOP at least a 52-seat majority in the Senate. As Jeffrey Anderson and Robert Laszewski have noted, Republicans made ObamaCare a major issue in the election  (the New York Times’ denials notwithstanding). Senate Republicans will fall several seats short of the 60-vote super-majority needed to overcome a Democratic filibuster of an ObamaCare-repeal bill, though. ObamaCare opponents are therefore debating whether and how Republicans could repeal some or all of the law via the Senate’s “budget reconciliation” process, which allows certain legislation to pass the Senate with only 51 votes. Some opponents have proposed getting around these difficulties by getting rid of the filibuster entirely. I think there’s a more prudent, targeted way Republicans could put ObamaCare repeal on the president’s desk , give Democrats a taste of their own majoritarian medicine , and convince Senate Democrats of the virtues of restoring the filibuster on legislation and judicial nominations.

The Lego Senate. Source: Mashable.com.

It goes like this. Senate Republicans would bring a reconciliation bill to the Senate floor. They would offer a one-line amendment: “The Patient Protection and Affordable Care Act of 2010 is hereby repealed.” Democrats would raise a point of order against the amendment, most likely under the “Byrd rule.” There is some disagreement about whether the parliamentarian would uphold that point of order, but rather than get into the details, I will assume she does. The amendment would be dead unless Republicans could muster 60 votes to overrule the parliamentarian (technically, the presiding officer, Joe Biden), which they cannot do.

However: all Senate rules are adopted and can be amended by a simple 51-vote majority. Outgoing Senate Majority Leader Harry Reid (D-NV) and his caucus reminded the nation of this fact when they “nuked” the filibuster for most judicial nominations.

Immediately after the parliamentarian rules the ObamaCare-repeal amendment out of order, therefore, Senate Republicans would give the required notice that they plan to change the Senate rules such that no budget-reconciliation point of order shall lie against any legislative provision repealing part of the Patient Protection and Affordable Care Act of 2010 .  The next day, Senate Republicans would enact that rules change, and pass a bill repealing ObamaCare.

Consider the benefits of that simple, targeted, and proportionate rules change.

First, it would move the ball closer to the end zone by enabling Republicans to put an ObamaCare-repeal bill on the president’s desk. Getting a repeal bill to his desk and forcing him to veto it would further undermine the legitimacy of a law enacted and implemented against the will of the people, and demonstrate that the opposition to the law has not faded.

20141027 HuffPo-Pollster ObamaCare pollsObamaCare: Four Straight Years of Unpopularity. Source: Huffington Post/Pollster.com.

Second, this rule change would make life very unpleasant for ObamaCare’s supporters in the White House, Congress, and the 2016 presidential race.

After the president vetoes one reconciliation bill fully repealing ObamaCare, congressional Republicans could send him further reconciliation bills repealing just the law’s most unpopular features, like the individual mandate, or making good on the president’s “if you like your health plan, you can keep it” promise.

Republicans could force the law’s congressional supporters to cast lots of difficult votes, force the president to issue lots of difficult vetoes, and force pro-ObamaCare presidential hopefuls to field lots of uncomfortable questions. (“Mrs. Clinton, would you let people keep their health plans? Would you veto repeal of the individual mandate? How does it feel watching President Obama do so after he became president by attacking you for supporting it?”)

Third, this targeted rule change would only affect ObamaCare, and only through the reconciliation process. That makes it a proportionate response to the way Senate Democrats used and abused the reconciliation process to pass ObamaCare, then nuked the filibuster on judicial nominations to protect the president’s unilateral expansion of the law (see herehere, and here). If Democrats can use a majoritarian process first to enact a law opposed by the people, then again to protect that law from the people, certainly Republicans can use a majoritarian process to give voice to the people by repealing that law.  This rule change is also a proportionate response in that it would expire the moment ObamaCare does.

Finally, by giving Democrats a taste of their own majoritarian medicine, this rule change could help Democrats see the virtues of the filibuster, and thereby help restore regular order and minority rights to the Senate.

Since Democrats effectively linked judicial nominations and ObamaCare, Republicans could even offer to restore the filibuster on judicial nominations in exchange for Democratic votes on repealing ObamaCare. Vulnerable Senate Democrats who want to block future Republican judicial nominees could conceivably go along. Some Republicans might think that’s a lousy trade. They should consider that every day ObamaCare remains on the books, its subsidies (legal or illegal) are minting new pro-ObamaCare voters, which will frustrate their efforts to reshape the courts.

Though I used to work for the Senate leadership and scurry about the Senate floor, I’m hardly an expert on Senate procedure. So there could be wrinkles I’m not seeing. But Republicans do have it within their power to get an ObamaCare repeal bill to the president’s desk, and maybe even save the Senate in the process.


“Pro-Slavery” Bundy Even MORE Deserving of Support

If you’ve been under a rock this past week or so, you missed the dust-up in Bunkerville, NV.  One Cliven Bundy, elderly, rambling, deeply misguided on many issues, and lawfully, technically, wrong, without a legal leg to stand on, said some stupid things after a bunch of Tea Party literally ran to his support, on horseback, w/rifles, colors blazing.

We’ll tackle why BLM showed up w/armored tanks and snipers in moment, but let’s tackle the 1st amendment first:  What Cliven Bundy imagined about the idyllic, gardening, family-unit lives of slaves is… inexplicable. I can only ascribe it to the same category Obama supporters put Reverend Wright’s racism: ‘Well… You have to understand the times he grew up in. His generation. That’s what those people were taught by their fathers and grandfathers…’

So let’s all agree what he said, in the same way we all (well, non-Obama supporters) agreed that what Reverend Wright preaches, is deeply offensive, racist, and wrong, okay?




You love liberty?



Here’s why:

BECAUSE IT HAS ****NOTHING**** to do with Cliven Bundy!  Just like Dana Loesch said!


Al Sharpton owes more than $2M.  Are there SWAT teams showing up in Harlem?

Warren Buffet owes ONE BILLION in back taxes. ARE THERE SWAT TEAMS SHOWING UP IN OMAHA??????

Of course not.

This isn’t even about back taxes (or grazing fees) lawfully owed.

THIS WAS A MESSAGE.  This was a MESSAGE being sent to ALL of us.  Same message sent to Gibson Guitar and the poor raw milk farmers who were treated to pre-dawn armed raids.


What the HELL are our agencies doing armed to the f*cking teeth anyway?



I stand with those who stand AGAINST ARMED BILL COLLECTING.  And if the name at the center of it happens to be Cliven Bundy, Reverend Wright, Timmy ‘Turbo Tax’ Geithner or anyone ELSE I find reprehensible – or ENDORSE – I DON’T CARE.  So be it.  What happened in Bunkerville was WRONG.

Democrats = Tea Party! Who Knew?

First of all, let’s just get something stipulated:  Democrats will always tell you what they fear. Always. They are the most evolved humans in all of human history in doing what psychiatrists call projection: through their words & deeds they are doing/saying what they accuse their straw men/enemies of doing. Through their words & deeds they tell you what they fear by doing what they accuse their straw men/enemies of doing. It’s 100% reliable. 100%. Every time. Without fail. Consistently. No matter what. Okay? Got it?  Can we stipulate it?

This has been a tour-de-force week of this point in human evolution.  While Democrats stand on the House & Senate floors doing what they reliably do, breaking out the kleenex box, there, on Democratic Senate Leader Harry Reid’s desk, are 8 or so House-passed bills to alleviate the suffering they say they want to alleviate, but the creepy-troll won’t even allow the Senate to vote for them.


He just heard speeches from any number of the 54 of the 100 Senators who are Democrats detail how acutely they felt the people’s pain.  Article 1, Section 8 of the Constitution gives the House the power of the purse. Harry Reid actually wondered aloud what “right” the House has to “pick and choose.”

This is astonishing.

He is either cravenly mendacious or senile.  Surely the old coot knows that the long train history shows that that’s exactly how government funding gets done.  If I have my history right, I believe there are usually 12 separate appropriations bills which pass through the House, go to the Senate, then possibly to conference, then, ultimately to the President for signature. Oh… Wait… I’ve got it.  I know why Senator Reid can’t remember how it works:

He hasn’t taken up an appropriations bill since 2008.


Yes. That’s right. The last time a budget was signed by this President was April 2009.  It was President Bush’s last budget.


That’s right. President Obama has not passed a budget since taking office, in FLAGRANT violation of the law.  You’d be forgiven for no knowing that since The Palace Guard, er, the mainstream media, The New York Times, The Washington Post, ABC, NBC, CBS, MSNBC, CNN, have not reported this dereliction of duty, this unprecedented – unprecedented – neglect of the most basic functions of the federal government, one in such deep, deep fiscal trouble.  It’s unconscionable, but evidently, unworthy of reportage.

Remember: George Bush poured water on Khalid-Sheik-Mohammed.

That’s bad.

That’s worthy of impeachment.  Hell, even a trial at the Hague for war crimes leading to execution.

But back to the here and now, to Democrats on the Hill, and what their actions are telling you:

They’re giving a resounding argument for small government! A treatise on smaller is better. Smaller works.

Case in point:

One Democrat stood – with his figurative kleenex box – on the House floor during a special Saturday session, October 6th, and, while making a plea for what turned out to be a unanimous vote to authorize pay for furloughed federal workers, said he had one of his hard-working staffers stand in his office weeping.  He said she just broke down and cried, wondering aloud how she was going to pay for her two kids’ needs if they didn’t authorize back-pay for time off during the shut down.

My, my. Looky there.  Not only did they get a unanimous House vote for it, they got Harry Reid to take it up for a vote, and the President to signal he would sign it.

But, but, but… What about being “blackmailed” by “extortionists” and “arsonists” and anarchists” with “bombs strapped to their chests” and a “gun held to the American people’s head”?  The President himself and his henchman have used these words to describe their fellow Americans who disagree with them.

Islamic terrorists are just misunderstood, mind you.

But Americans, and their representatives on The Hill, are worthy of this rhetoric from The Leader of the Free World.

So what does it mean? How is this Tea Party?

What you see up close, you feel.  What you feel personally, you act on.

The lesson here is: if you cry in front of your congressman, you get action.

Good luck getting in front of your congressman.

Unless you’re part of a special class of people, either on the inside via working for the federal government, or via a big checkbook, that ain’t happening.  And an email, a tweet, even snail-mail isn’t as powerful as one woman weeping over her children in front of one male congressman.

Men hate it when women cry. They’ll do anything to stop it.  Just ask one. They’ll tell you. They h-a-t-e it.

So imagine, if you will, that that same woman just ran in to that lawmaker at the grocery store. At church.  At the local diner.

That is what Tea Party advocates.

Return the non-defense functions of the federal government to the states.  Defense is the only item in our founding documents specifically enumerated for federal funding and control.  The only one.  Now, we have an enormous transfer payment apparatus in the form of Social Security & Medicare (and now Obamacare) that has to be unwound, reformed, but that’s doable. It’s completely doable without harming a soul. It just takes courage.

But imagine how that would be?  Imagine if the E.P.A. administrator in West Virginia had to risk running into a coal miner at the Piggly-Wiggly? You think she’d be so callous? Hm?  Imagine if the administrator for aged/disability payments had to risk running into a recipient at church? (I know, I know… a progressive at church? Just go with me here…) You think he or she would threaten them so carelessly?

Of course not.

Smaller is better.  Local is easier to keep an eye on. You know what’s going on in your backyard. Harder to know what’s going on in a backyard hundreds or even thousands of miles away.  It’s one hell of a lot easier to get to your state capital or even county/parish/borough seat than it is to get into any building in Washington D.C. right?

These Democrats voted to restore funding for their staffs not just because they cried in their offices, but because they live with them and rely on them every day.  If their staffs hate them, they’re less likely to hold the elevator door, get their faxes out on time, etc., etc. The people who rely on these politicians for their pay can make their lives miserable by their absence when relations are good, and by their presence if relations are bad, if they feel abused by these politicians.

YOU are the people. If they’re in your backyard, you’ve got them by the… well… you know.

Thanks for making the argument for us, Democrats!  Too bad The New York Times, The Washington Post, ABC, NBC, CBS, MSNBC, CNN, won’t report it that way.

Remember: Khalid-Sheik-Mohammed got wet.

That’s bad.

“The” Chickens Roosted!

Politico opined:

“President Barack Obama made a big gamble last January when he issued four recess appointments during a three-day break between meetings of the Senate — and with the court ruling Friday broadly undercutting his ability to make such appointments, he may have lost even bigger.”

That’s an understatement!

This ruling was the bitch-slap of all bitch-slaps. Not only did the court rule that Obama’s unprecedented pro-forma recess-not-recess appointments violate the Constitution, they went back and *gasp* read not only *gasp* the Constitution, but *double-gasp* The Federalist Papers! They ruled that not only were the intrasession pro-forma appointments unconstitutional, they ruled that all intrasession appointments are unconstitutional!  Intersession won the day and all because of one little word: “the”. (You can read more about “the” here.)

The White House, The New York Times, and all the usual suspects are in spasms, naturally.  The N.L.R.B., amazingly, and with the White House’s blessing, is blowing it off and continuing their work. And once again, the left is dusting off “Bush did it first!” like that matters. They hate the guy except when his bad behavior justifies theirs. Kindergarten!  Bush, and, in fact, a dozen Presidents have made intrasession appointments. For decades. But no President had ever made a pro-forma appointment. That was uniquely brazen (In addition to the brazen pro-forma part, these appointments hadn’t even been submitted for Senate review. They’d been sitting there. Obama didn’t even go through the motions of starting the Senate review process. Didn’t lift a finger. Didn’t even give the Senate a chance to say no: just blew right past ’em. It’s breath-taking.) But that’s not even the point. The point is, through a dozen Presidents, nobody ever called them on it.

Until yesterday.

Lefties (bless their hearts 🙂 ) will never  learn that just because it’s been done before and gotten away with doesn’t make it right!  Especially when the Constitution is the rule!

Of course, the bonus is, it was Harry Reid who birthed the pro-forma strategy to stop Bush from making “recess” appointments.  Harry & his evil minions got their chickens plucked but good with this one.

The ruling is a work of art, truly, for lovers of originalist interpretation.  You can read it below or here.

Noel Canning v. NLRB by